Taking time off work to provide compassionate care

Compassionate care leave

Can you to take time away from work to be with a dying parent, grandparent or a very close friend?

Someone very close to you may be diagnosed with a terminal illness and life expectancy is measured in months. If ever there was a time for togetherness, it’s during those precious last months.

A full-time job and family commitments allow for minimal connection. What if you were able to take some time off from work, confident that doing so would not negatively impact your employment? Maybe a week or so when the shock of the terminal diagnosis hits. And then here and there as your loved one most needs your emotional, and perhaps physical care support.

A good friend living in Ontario suggested this topic when he learned I was writing about end-of-life matters. He prompted me with “You know the big thing they don’t want you to know about?”. (By “they”, he meant employers.)

He reported that in his experience, most people are unaware employees can take a job-protected leave to care for loved ones.

Do you expect lawyers know all things legal? In this situation, I’m lumped in the bucket of the unaware. I had no idea.

Each province has its own employment rules. A quick Internet search took me to British Columbia’s Employment Standards Act, which provides for compassionate care leave in the province. The leave is not restricted to a dying parent or grandparent. Other family members qualify as well.

So, which family members? I challenge you to come up with a person who is very close to you who would not apply. There is a legal beast called the Family Member Regulation that provides an incredibly comprehensive list of close and not-so-close relatives. And there is a catch-al—any individual you consider to be (or who considers you to be) “like a close relative”, whether or not there is anything of a blood, adoption, marriage or common law connection.

For ease of identification, I will refer to that person as your “family member”.

A certificate from a medical doctor or nurse practitioner is required. The certificate must state that your family member has a serious medical condition with a significant risk of death within 26 weeks.

The purpose of the unpaid leave is “to provide care or support”, but there is no requirement for the medical certificate to say that care or support is medically required.

How long is the leave? You are entitled to up to 27 weeks of unpaid leave over a 52-week period. The leave can be taken in one chunk or one or more weeks at a time. Of course, the leave ends on the death of your family member. Specifically, at the end of the week in which your family member dies.

If your family member beats the odds and does not die after 52 weeks, you are entitled to another 27 weeks if you get another certificate.

The legislation protects employees by requiring your employer to place you, at the conclusion of your leave, in the same, or a comparable, position as you held before taking the leave.

The provincial government has a web page explaining this leave that can be found here.

It gets better.

Employment Insurance (EI) can be available, for up to 26 weeks. “Family member” is defined just as broadly in EI, with a similarly broad catch-all, i.e. including “a person who is considered to be like a close relative”.

A beautiful thing about these benefits is the 26 weeks of benefits can be shared with others, either at the same time or one after the other. A dying grandparent could have several children, grandchildren, and other people “considered to be like a close relative” sharing 26 weeks of EI benefits so they can help care for and support them.

Unlike for unpaid leave, there is a prescribed medical certificate that must support an application for compassionate leave EI benefits. In order to qualify, the doctor or nurse practitioner must certify not only that the family member has a serious medical condition with a significant risk of death within the next six months, they must also certify that the family member “requires the care and/or support of one or more family members over the next six months”.

That one certificate would be used for each EI applicant. Thankfully, the certificate includes broad definitions of care and support, with support defined as “all psychological or emotional support that the patient needs because of their state of health”.

Care needs aside, I have trouble conceiving of anyone facing a significant risk of death within the next six months not needing emotional support.

I’m thankful to my buddy for suggesting I shed light on these end-of-life matters. Please e-mail me with your questions or issues you would like me to write about.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Reasons you may not want to make your child your financial and care advocate

Decision-making power

Are you putting your (adult) child in a conflict of interest by appointing them as your attorney by power of attorney? Or as your representative with a representation agreement?

Of course you appoint your child. How could you find a more trustworthy candidate? How could that possibly put them in a conflict of interest? What other interest than your best interests could they have at heart?

To put it bluntly, their own—even if unintentionally.

I’ll give you a scenario to illustrate the conflict. You and your husband put your life savings into your home. You continue living in the home after your husband dies. Modest pension income covers your expenses. At some point, your cognitive decline becomes noticeable to your child. Concerned, they take you to your doctor who diagnoses dementia.

Years ago, you had the foresight to appoint your child both your attorney by power of attorney, as well as your representative by a representation agreement.

On one hand, thank goodness. There is someone you love and trust in place to handle your financial and care affairs. But on the other hand, you start feeling the discomfort of losing your independence.

A fall puts you in the hospital with a broken hip. On release, you need help with mobility and personal care. You also require supervision because of advancing dementia. Strange surroundings make you uncomfortable. You want nothing more than to get back into your familiar home surroundings. But it will require accessing the equity in your home to pay for significant renovations to accommodate your disability. That equity will also be required to pay for care and supervision.

The renovations and ongoing care expenses will be significant. The equity in your home could completely disappear.

Alternatively, the very best care facilities, along with supplemental one-on-one services, would also cut into that equity. Providing the level of support and care you can afford will cut sharply into your child’s inheritance.

Is the conflict of interest painfully clear?

Perhaps I am being cynical. Perhaps every child, no matter their own financial circumstances, would spare no expense when spending their anticipated inheritance for their parent’s comfort and care. Or am I’m being a realist?

There’s another factor. However well-meaning your child might be, they might be horribly ill-equipped to be your advocate. They might not know about what levels of home care can be provided by the health authority, or be unfamiliar with the kind of equipment and home supports that can help you stay in your own home.They might not know one-on-one service providers can be hired to support those in care homes.

Yes, anyone can make inquiries, but feeling your way through unfamiliar territory can be overwhelming and is never as effective as knowing the ins and outs.

I have looked into alternatives. Are there folks with experience and expertise in end-of-life matters who offer their services to act as attorney and representative?

Imagine the peace of mind of appointing a professional advocate with that expertise.

You can keep your kids in the loop by giving them the authority to monitor the work of the professional, while giving them the peace of mind their parent has an experienced and capable advocate.

Are professional advocates available? I’ve come up empty in my superficial search, but I might not know where to look. If they exist, they’re not well advertised.

If you are aware of a business with professional advocates who provide those services, please let me know and I will pass the information along.

I envision a service would provide candidates with experience in elder care, who are carefully vetted and bonded. The professional would be required to keep diligent records of their activities and reasons for their decisions, and provide transparency to whoever is the “monitor” and careful oversight by the business that employs them.

Would you be interested in accessing that kind of service? Are you someone who possesses the life experience that would make you an excellent health care and financial affairs advocate?

Please e-mail me and I’ll share with you the results of my inquiries.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Conflicts of interest can be found in many walks of life

Conflicts of interest

Next week I plan to write about conflict of interest in the context of powers of attorney and representation agreements but this week, I will set the stage by writing about conflicts of interest generally. They’re everywhere.

Many columnists, including me, have conflicting interests. I am a writer who is interested in providing helpful information about end-of-life matters to the public. I am also a lawyer running a law firm, interested in building my clientele.

I could use my column to persuade readers that particular legal services are necessary, even if that might not be so. I could choose not to provide information and links to resources allowing for results to be achieved without incurring the expense of a lawyer, and I could describe myself in a way that implies, or outright states, I am the best person to go to for the legal services I provide, even though there are many lawyers who provide the same services.

Those conflicting interests should be kept in mind any time you read a column written by a business owner or service provider.

Businesses are often in conflict if potential customers rely on them to help decide what products or services they need. The interest of providing reliable advice often conflicts with the interest of maximizing sales. A classic example is an unscrupulous automotive shop, where you might be given a laundry list of required services when taking your vehicle in for an oil change.

But automotive shops don’t have a lock on conflicts that lurk any time a business has expertise that the customer needs to make a purchase decision. And that includes law firms.

For example, a parent might come to me with an old will appointing guardians for their children who have since become adults. They often assume a new will is necessary because of the significant change that guardians are no longer required.

Advising them a will doesn’t require updating solely because guardian appointments are no longer required conflicts with selling will services.

So, conflict of interest should be considered any time you rely on a business to advise you about what products or services you need.

In my view, the worst of conflicts are with politicians looking to be re-elected. It’s what leads me to often exclaim how much I hate politics.

For re-election, a politician needs popularity with a majority of the voting public. But to do the best for his or her constituents, the politician must, at times, implement important though unpopular policies, such as those to save the environment or help minorities. Implementation of the Medical Assistance In Dying (MAID) laws was significantly delayed, taking two series of court battles before the Supreme Court of Canada to finally force the issue because of this horrible conflict of interest.

My wife thinks I’m overly cynical, always skeptical of what selfish interest might be driving what we’re being told. She’s probably right. It’s my cynical side that led me to ponder conflicts of interest in the context of powers of attorney and representation agreements.

If you have ideas about what I’m referring to, please send me an e-mail with your thoughts. I’m interested in knowing how broadly my cynicism is shared.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Importance of representation agreements and advance directives

Health care decisions

“Do I really need a representation agreement? My friend had no difficulty directing the care of her spouse when they were in the hospital with a serious illness.”

Barb, of Kelowna, e-mailed me the day my first end-of-life-related column was published atthe end of January.

She started by writing, “Here you are, not even started yet, and suggestions are pouring in!” And continued, “At some point, I would love you to tackle the situation of making sure you have a personal health directive in place prior to you becoming ill.

“Last year, I had a sister I did a health check on who ended up in hospital. What a mess! I became her advocate with health officials. All she had was a will, which kicks in only after you are dead. Such a stressful time. No one would listen.”

I asked to interview her at some point. That interview was this past week.

Barb has long been a promoter of getting “your ducks in a row.” She talked to her siblings years before about having the full gamut of paperwork done, i.e. a power of attorney, a representation agreement, an advance directive and a will.

But she still faced the quagmire of stressful uncertainty that occurs when those materials are not available.

He sister had a type of slowly progressing dementia but was living independently when she became gravely ill. Barb checked on her sister regularly and got her to the hospital.

The hospital intake went smoothly. Her sister was too ill to communicate for herself and everyone turned to Barb to learn about her sister’s history and condition. Barb was treated as the trusted sister she was.

It was after her sister was put in a ward and the practical need to have consent for medical procedures came up that the problems arose. One procedure that became necessary was to have her sister’s bladder drained. An infection was blocking the natural process and a minor procedure was required to insert a catheter to allow for drainage.

Except in an emergency, medical procedures cannot be performed on you without your consent.

Barb wasn’t armed with her sister’s advance directive, a document I referred to briefly in my last column, where you can give written consent for future medical procedures. Nor was she armed with a representation agreement, the focus of my last column, where her sister could have appointed Barb to give consent on her behalf.

Making matters worse, Barb wasn’t able to tell the medical folks those documents did not exist. She expected her sister had her “ducks in a row” like she recommended years before.

She searched her sister’s condo for the documentation and found other materials, like the useless paperwork from the sale, a decade previously, of her sister’s house. But she did not find the important stuff.

Without an advance directive or a representation agreement, medical folks can turn to a substitute decision-maker. But there was uncertainty about the existence of those materials and Barb wasn’t the top of the default list. Her sister’s daughters were, and they were in Alberta.

Barb was the person best equipped to help direct her sister’s medical care, and she was at her sister’s bedside but she had no authority.

Not only was she unable to help but she was kept in the dark. Your medical status is confidential and cannot be shared with someone without authority.

Imagine the frustration and helplessness Barb felt.

The happy news was that, although the red tape of consent resulted in some delays, Barb’s sister got the excellent care that is characteristic of the fine folks at Kelowna General Hospital and she recovered from her illness.

And, it turns out, her sister had indeed gotten her ducks in a row. Barb helped clean out her sister’s condo when she moved to Alberta to be close to her daughters. Sure enough, a representation agreement and advance directive were found with a boatload of inconsequential materials.

She had her ducks together, just not in a row.

Barb has some hard-earned advice.

First, make a representation agreement and be careful to appoint the most appropriate person as your representative. It doesn’t have to be an expensive and time-consuming process. My last column shared a link to a free form that you can use.

Most people Barb talks to about this issue are reluctant to put their minds to the possibility that they will face a level of illness needing someone to make decisions for them.

Her message to them is they are being unfair to their loved ones as they are the ones that will be are left in the lurch if those steps are not taken.

Her other advice is to keep your representation agreement, advance directive and any other important documentation about your care in a place where they can be found—and tell those who care about you where that is.

Interior Health and other health authorities suggest using a green plastic folder and keeping it on or near your fridge, noting paramedics are trained to first look there for any advance care documents. You can request a free greensleeve here.

Please e-mail me with any questions you might have about this subject matter, and I invite you to review the wonderfully informative “Frequently Asked Questions” Ministry of Health publication about advance care planning you can find here.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.