The recent case of Terri Schiavo highlights why health care decision-making should be a part of every estate plan.

In Florida, Ms. Schiavo’s husband claimed to have been verbally told that she would not want to be kept alive in vegetative circumstances, while her parents strongly disagreed. Here in BC, who would have the legal authority to make the decision? Would verbally expressed wishes have any legal effect?

Do our laws create an adequate default system? Or should you spend money to make your own plans?

In BC, as a competent adult you have the right to determine what is done to your body. This includes deciding whether to accept or refuse medical treatment—even if it puts your life in danger. On the other hand, BC law will not authorize euthanasia. You may refuse life-saving treatment, but you may not request treatment that would actively end your life (e.g., an overdose).

Different rules apply to Terri Schiavo’s case. She was no longer capable of expressing her wishes. A substitute decision-maker was required.

Two BC laws (the Health Care (Consent) … Act and the Representation Agreement Act) now recognize your legal right to:

1. Appoint someone as your substitute decision-maker (this document is called a “Representation Agreement”); and

2. Record wishes about future treatment (this document is sometimes called a “Living Will”).

The decision-maker’s authority covers not just end-of-life or medical issues but also where you live, what you wear, and what you eat. The directions they must follow are often general value statements such as “no artificial or heroic measures to extend life” if there is “no reasonable expectation of recovery” and “death is imminent.” Sometimes, very specific directions are drafted with a doctor who has knowledge of your prognosis and expected treatment.

However, in Ms. Schiavo’s case, she did not name a decision-maker or leave any written instructions.

The BC law has a default system that allows the medical staff to select a temporary decision-maker. The choice is made among the next-of-kin in the order of spouse (including common law), adult child, parent, and then siblings.

BC law also requires that the temporary decision-maker follow your previously expressed wishes or values—whether they are written or not.

Therefore, under the default in BC, Ms. Schiavo’s husband would have been recognized as her decision-maker and her verbally expressed wishes would have been binding.

However, you may not want to rely on the default system. Your next-of-kin may not be your preferred decision-maker. Your end-of-life wishes will only be followed if the medical staff agrees that they are “medically appropriate”—and even then there is a 72-hour delay (except in emergencies). Any uncertainty could result in a legal battle that would be costly in money, time, and emotion.

In summary, the BC default rules would likely prevent the chaos of the Schiavo case. Still, you may wish to take the time to record your preferences in a Representation Agreement and Living Will. It’s your opportunity to decide who decides.

Geoff White practices estate, tax and charity law in Kelowna. Geoffrey W. White Law Corporation, 434 Glenwood Avenue, Kelowna, BC V1Y 5M1, (250) 712-2205, gwhite@bcestatelaw.com.