Introduction: A Right to Decide in Residential Care

This chapter describes key mechanisms for making decisions on behalf of an adult who is living in a residential care facility. It also describes some of the common legal issues that come up in residential care in the context of substitute decision-making.

Today, older adults have a wide array of means to help them with life decisions, even if they become mentally incapable of making and expressing their own decisions. Just because an older adult moves into a residential care facility does not automatically mean that he or she needs an enduring power of attorney, representation agreement or advance directive. The older adult may continue to manage his or her own finances and make health care as well as other personal decisions while residing in the care facility and mentally capable of making the decision.(1)

Nevertheless, when an older adult moves into a care facility, it may be a good time to consider whether he or she wants to prepare these documents to address possible future needs or whether he or she wants some help with financial management or other decisions, now, while he or she is still capable. (2)It is however very important that people in contact with the older adult, including the staff, administration, operators and family or friends understand what these “future planning “ documents, as well as substitute decision making laws permit people to do on behalf of the older adult, and what they do not permit. (3)

Promoting Future Planning - What can care providers do?

Can a long-term care facility administrator require the prospective resident to execute future planning documents?

A residential care facility administrator cannot require an older adult to execute a power of attorney or any future planning document as a condition of admission or to remain in the facility. For example, section 3.1 of the Representation Agreement Act stresses that a representation agreement cannot be mandatory. (4)Similarly, s. 19.91 of the Health Care Consent and Care Facility (Admission) Act emphasizes that “An adult must not be required to have an advance directive as a condition of receiving any good or service.” (5) If the older adult decides to prepare a power of attorney, the administrator cannot require him or her to use that facility's "standard form" documents.

It may be appropriate for a facility administrator or staff member to ask the older adult and his or her family whether the older adult has prepared any future planning documents and ask to see a copy. This helps to determine the persons with authority, as well as their scope of authority. The facility administrator or staff member may even provide the new resident and his or her spouse, partner, family or close friend with information about these documents to help the new resident plan for future property management or to pay residential care bills. Some facilities provide this information as a matter of courtesy to assist residents. (6) However, as a resident of a long-term care facility, whether the older adult decides to prepare any of these documents is ultimately that person’s choice and decision.

References

1. Adapted from Advocacy Centre for the Elderly (ACE), Long Term Care Facility Advocate’s Manual, January 2004. [“ACE, Manual”]
2. ACE, Manual.
3. ACE, Manual.
4. Representation Agreement Act [RSBC 1996] c. 405, s. 3.1. [“RAA”] Last accessed: April 22, 2014.
5. Health Care Consent and Care Facility (Admission) Act, s. 19.91, [“HCCCFA”} Last accessed: April 22, 2014.
6. ACE, Manual.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014.

In contract law, a promise made by someone about a certain state of affairs, like "the plumbing was replaced last year" or "I had a vasectomy two years ago." See "misrepresentation."

In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

In contract law, to complete or accomplish; to complete the legal formalities necessary to give a document effect. One "executes" a separation agreement, for example, by signing it in the presence of a witness.

In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

Something which can be owned. See "chattels" and "real property."