By the legal staff of the BC CEAS Elder Law Clinic
Introduction – The Importance of Planning Ahead
It is possible that, some day, an illness, injury or disability may render you unable to make your own decisions. For example, a serious accident may leave you unable to make decisions regarding your finances, your health and personal care and other matters. Alternatively, an illness such as Alzheimer’s disease may affect your ability to make decisions and look after your own affairs.
Such “mental incapability” is more common than we may want to believe. It therefore can be important to plan ahead and set up arrangements in advance – while you are still capable of doing so – if you wish to ensure that the person or persons of your choice will be legally able to “step into your shoes” and make important decisions for you, if you become incapable of making decisions on your own. If an injury or illness renders you incapable and you have not set up appropriate arrangements in advance, normally a “committee” (legal guardian) will need to be appointed by the court to look after your affairs. The court process is time-consuming and expensive, and there is no guarantee that the court will appoint the person you would have wished to look after you affairs or grant the powers desired. Advance planning on your part can enable your loved ones to avoid the difficult court process and assist in providing a smooth transition to a period in your life in which you may be incapable of handling your own affairs.
For further information on the importance of planning ahead for incapability and also the “committeeship” process, see the BC CEAS articles entitled The Possibility of Incapability: Why Plan Ahead? and Committee: An Incapable Person’s Decision Maker. (Note: Links coming soon!)
What Legal Documents can I use to Plan Ahead for Possible Future Incapability?
Under BC laws, there are two main types of legal documents that allow you to plan for the future by designating another person or persons who will make your decisions for you, or assist you in making decisions, if you should become mentally incapable at some point in the future.
A power of attorney is the chief planning document used for giving another person (called your “attorney”) the legal authority to take care of your financial affairs for you, if you end up needing help in this area. (There are different types of powers of attorney, however an “enduring” power of attorney is the type that is used for prior planning for incapability. It continues in effect – or endures – if you become mentally incapable.) However a power of attorney gives your attorney the authority to take care of only your financial and legal affairs. It does not enable him or her to make decisions about your personal and health care. For example, a power of attorney would not allow your attorney to consent to health care on your behalf or to make decisions about where or with whom you will live.
Under BC laws, if you want to ensure that the person or persons of your choice are able to make decisions about your personal and health care if you become mentally incapable at some point in the future, you need to make a representation agreement. If you wish, you can also give your designated person(s) the authority to make decisions about your legal and routine financial affairs in your representation agreement (and, under current laws, also significant financial decisions such as the sale of your house).
For further information on powers of attorney, see the BC CEAS article Powers of Attorney.
What is a Representation Agreement?
A representation agreement is a legal planning document that allows you to choose the person or persons who will make important decisions for you, or assist you in making decisions, if you become incapable of making decisions on your own. The person you so choose is called your “representative.”
As noted above, in a representation agreement you can give your representative(s) the authority to handle personal and health care matters, as well as your legal and routine financial affairs. Under current BC laws representation agreements can also cover significant financial matters such as the purchase or sale of real estate. You can specify in your representation agreement what your representative is to consider when making decisions on your behalf, and also when, and under what circumstances, the agreement is to take effect.
Who can make a Representation Agreement?
Any adult aged 19 or older who is capable of making a representation agreement may do so. Mental capacity is the ability to make reasoned decisions. A person who is capable must understand the context or nature of a decision, and appreciate the possible consequences of a decision. According to BC law every adult is assumed to have capability. This means that, until it is proven otherwise, a court will assume that a person is capable of making his or her own legal medical and financial decisions. It is important to note that capability is a legal term and that it applies to the particular decision that needs to be made. Some people with diminished capacity may not be able to make some decisions but may be able to make others. For example, someone may have a cognitive deficit that prevents him or her from making decisions about finances, but she or he may still be perfectly capable of making decisions about health care.
Are there Different Types of Representation Agreements?
Under the BC Representation Agreement Act (the “Act”), there are generally two different types of representation agreements that you can make: An agreement with only “limited powers” – sometimes called a section 7 representation agreement – and an agreement which includes “general powers” – sometimes called a section 9 representation agreement. In general, the types of decisions that you can authorize your representative to make in a section 7 agreement are important, but generally not as intrusive or potentially controversial as those that can be included in a section 9 agreement. A section 7 agreement is generally sufficient to cover your routine, day-to-day care needs.
Section 7 Agreements
Section 7 of the Act allows you to make a basic representation agreement that covers your routine daily living requirements. In a section 7 agreement you can authorize your representative(s) to help you make decisions, or to make decisions on your behalf, about any or all of the following:
- your personal care;
- the routine management of your financial affairs, including paying your bills, receiving and depositing your pension and other income, purchasing your food, accommodation and other services necessary for your personal care, and making investments for you;
- minor health care, including routine tests and dental treatment;
- major health care, including major surgery, major diagnostic or investigative procedures, treatments involving a general anesthetic and radiation and other forms of therapy, but not including decisions to refuse life-supporting care or treatment and certain other significant health care decisions (such “bigger” health care decisions need to be authorized under a section 9 agreement); and
- obtaining legal services for you and instructing lawyers with respect to legal proceedings (except for the commencement of divorce proceedings, which cannot be authorized).
Section 9 Agreements
Section 9 of the Act allows you to make a representation agreement that gives your representative the authority to make very significant medical and other decisions for you, including the decision to refuse life-supporting treatment. Things you can authorize your representative to do on your behalf in a section 9 agreement include the ability to:
- physically restrain or move you when necessary, despite your objections at the relevant time;
- give consent to specified kinds of health care, in the circumstances outlined in your agreement, even if you are refusing to give your consent at the applicable time;
- refuse consent to life-supporting care or treatment and refuse or give consent to other specified kinds of health care;
- admit you to a nursing home or any other kind of care facility;
- make arrangements for the temporary care, education and financial support of your minor children and any other persons who are cared for or supported by you; and
- generally do, on your behalf, any thing that can be done by an attorney acting under a power of attorney, such as, for example, running your business or buying and selling real estate. (It is expected that the legislation will be changed in the near future, so that the authority to handle significant financial matters will no longer be able to be included in representation agreements.)
To make an agreement that contains any of the section 9 provisions (i.e. a section 9 agreement), the law currently requires that you consult with a lawyer.
When Can I Make a Representation Agreement?
As described above, you will be presumed capable of making the decision to enter into a representation agreement unless it has been proven otherwise. This means you must be able to understand and appreciate the context of the agreement and any consequences that may arise from it. The law gives you the benefit of the doubt when it comes to deciding whether or not you are legally capable of making a representation agreement. Under the law you are presumed to be capable of making a representation agreement – and presumed to be capable of handling your own affairs – until the contrary is demonstrated.
Special Requirements for a Section 9 Agreement
Since a section 9 agreement authorizes your representative to make more complex or difficult decisions on your behalf, you are required to consult with a lawyer before the Representation Agreement can be finalized. The purpose of this law is to prevent anyone from entering into a section 9 agreement if that person is not capable of fully understanding the consequences of doing so. .
Differences Between Section 7 and Section 9 Agreements
Often, a person who is not legally capable of making an agreement containing section 9 provisions is still able to make a section 7 agreement. A section 7 agreement is generally sufficient to cover your routine, daily care needs. Under BC laws, you may still make a section 7 agreement even if you are or have become incapable of making other legal decisions or of managing your health care, personal care, legal matters or financial affairs.
Who Should I Name as My Representative?
You can choose any capable individual to act as your representative, so long as he or she is 19 years of age or older and willing to act as your representative.
It is very important that you give careful consideration about who you wish to choose to act as your representative. Think about what you want your representative to do for you, and who is best able to do those things. Choose someone you trust, and who understands the values and beliefs that guide your decision making. If the person will be handling financial matters for you, choose someone who is good at handling money.
If you have no relatives or friends who are willing and able to serve as your representative, you could approach a credit union or trust company, or the Public Guardian and Trustee of BC, about acting as your representative. In each case, if the entity agrees to act as your representative, you will be charged fees for their services. If you appoint a credit union or trust company to be your representative, their authority must be restricted to financial and legal matters only (i.e., you cannot authorize a credit union or trust company to make health or personal care decisions for you).
Can I Choose More than One Representative?
You can choose more than one representative in your representation agreement, if you wish. If you do this, you can assign to each person different areas of authority (for example, one handling financial matters and the other your personal and health care), or the same areas of authority. If you appoint more than one person in the same area of decision-making responsibility, the law states that they must act unanimously, unless you give them permission in your representation agreement to act independently.
There are good reasons to permit representatives to act independently. For example, if one representative is temporarily unavailable due to vacation or illness, the other can take over on his or her own, and decisions can continue to be made on your behalf. On the other hand, requiring your representatives to make decisions together will ensure that there is always a “double check” on decisions made on your behalf.
Can I Choose an Alternative Representative?
You can also choose one or more alternate representatives who can act in place of your first representative if he or she becomes unwilling or unable to act for any reason. If you name an alternative representative, you must specify in your agreement the circumstances when your alternative is permitted to act as your representative.
Your Representative’s Powers
The breadth of your representative’s powers depends on what powers you give them in your representative agreement. In planning for possible future incapability, people often choose to make two legal documents: A power of attorney, giving the person of their choice (their “attorney”) the authority to handle their financial and legal affairs, and a representation agreement, giving the person of their choice (their “representative”) the authority to make personal and health care decisions on their behalf. If you choose to do this, your chosen representative will be authorized in your representation agreement to handle your personal and health care matters only – and, further, only those personal and health care matters that you authorize in your agreement.
Your Representative’s Responsibilities
Your representative is required to act honestly and in good faith, to exercise the care, diligence and skill of a reasonably prudent person, and to act within the authority given in the representation agreement.
Your representative must also keep careful records of the activities done on your behalf and give the records to you, your monitor and/or the Public Guardian and Trustee upon request. If your representative is authorized in your representation agreement to handle your financial affairs, he or she normally must keep your assets separate from his or her own.
When helping you make decisions, or when making decisions on your behalf, your representative generally must consult, to the extent reasonable, with you to determine your current wishes, and comply with those wishes if it is reasonable to do so.
If your current wishes cannot be determined or it is not reasonable to comply with them, your representative is required to comply with any instructions or wishes you expressed while you were capable. If your instructions or expressed wishes are not known, your representative is required to act on the basis of your known beliefs and values, or in your best interests, if your beliefs and values are not known.
Can I Choose a Monitor?
If you wish, you can appoint a monitor in your representation agreement. If you do this, your monitor will be required to oversee the activities of your representative(s) and ensure that they comply with the terms of your representation agreement.
If your agreement authorizes your representative to handle routine financial matters for you (for example, paying your bills or depositing your pension income), then you are legally required to appoint a monitor if the representative you choose is not your spouse or a credit union, trust company or the Public Guardian and Trustee. However, if you choose two or more representatives who are required to make unanimous decisions on these financial matters, or if you have consulted with a lawyer or other prescribed person in making your agreement, then you are not required to appoint a monitor.
When does my Representative Agreement come into Effect?
Unless you state otherwise in your agreement, your representative agreement will come into effect as soon as it is signed and witnessed. However it does not have to be used right away if you do not need help yet. You may wish to have a trusted third party hold the document with instructions that they are to release it to your representative only when it is needed.
If you do not want your representation agreement to come into effect right away, you must specify in your agreement the “triggering event” that will cause the agreement to come into effect, and how the event is to be confirmed and by whom. You could, for example, provide that your agreement is to come into effect when your family physician is of the opinion – or when certain trusted friends jointly agree – that you are no longer able to make decisions.
Can my Representation Agreement be Changed or Cancelled?
You can change or cancel (revoke) your representation agreement at any time, provided you are capable of doing so. You should review your representation agreement at least once a year to ensure that it still reflects your wishes and addresses all the decisions that may need to be made on your behalf, and that the representatives named are still willing and able to act as your representative if and when needed.
As long as you are mentally capable you can cancel (revoke) your agreement at any time, but you must give written notice of the revocation to your representative(s), each alternate representative and your monitor (if any).
Preparing a Representation Agreement
There is no legally required format for a representation agreement. However, there are specific legal requirements with respect to the signing and witnessing of representation agreements, and also with respect to required certificates which must be signed by your representative(s), witnesses and others. If your representation agreement is not properly signed and witnessed and the necessary certificates completed (in the case of a Section 9 Representation Agreement) it may not be valid.
Who will make Decisions for me if I don’t have a Representation Agreement?
Health Care Decisions
In BC, if an adult is incapable of giving or refusing consent to health care, in accordance with BC Laws there is a default list of “substitute decision makers” can consent to medical treatment and can make health care decisions on behalf of the incapable adult if the adult has not appointed a representative to make health care decisions in a representation agreement and no committee has been appointed.
Under current BC laws, healthcare providers are required to choose as a substitute decision maker from the first available, qualifying person, in listed order, on the following list:
- your spouse
- your child;
- your parent;
- your brother or sister; or
- anyone else related to you by birth or adoption.
To qualify as a substitute decision maker to give or refuse consent to health care on your behalf, the individual must, among other things, have been in contact with you during the preceding 12 months and have no dispute with you. If there is no such person able and willing to act or there is a dispute about who is chosen, then the health care provider must choose a person authorized by the Public Guardian and Trustee of BC.
There are drawbacks to not having a representation agreement in place and simply relying on this “default list” of people who will make health care decisions for you if you become incapable. You will have no control over who ends up making health care decisions for you as the “default list” must be followed in the proper order, and you may not end up having the individual you want making decisions for you. Also, there are certain limits on the types of health care that substitute decisions makers are permitted to consent to on your behalf, and their authority is temporary. Further, the “default list” applies only to health care decisions – it does not extend to financial or personal care decision making.
Other Decisions (Financial and Personal Care)
As noted above, if you do not have a power of attorney, representation agreement or other legal document appointing someone to make your financial decisions for you when you become mentally incapable, then your loved ones will need to go to court to get the legal authority to handle your affairs (this is called a “committeeship”). Going to court may be prohibitively expensive for your loved ones. If you have no loved ones who are able to go to court to get a “committeeship”, then the Public Guardian and Trustee will step in to find an appropriate substitute decision make and to get a court order for that person to be appointed as “committee”.
Either way, because you will not have a say, the person who is chosen may not be there person you would wish to have managing your affairs. Enduring powers of attorney (which cover financial and legal matters) and representative agreements (which can cover financial, personal and/or health care matters) are relatively simple planning tools that can ensure that the persons of your choice are able to easily step into your shoes and manage your affairs when you become incapable of doing so, without having to go through the court process.
Nidus Registry for Enduring Powers of Attorney and Representation Agreements
The Representation Agreement Resource Centre has an online registry called the Nidus Registry where you can register your enduring power of attorney or representation agreement, if you wish. The fees are $25.00 for set-up and the first registration, and $10.00 for each additional registration. You can register yourself by going to www.nidus.ca on the Internet, or ask family or friends to help. You can also phone the Nidus Registry and Resource Centre for help with registering. Their phone number is 604-408-7414.
Public Guardian and Trustee of BC
Representation Agreement Resource Centre
BC Branch of the Canadian Bar Association (CBA), Lawyer referral service
604-687-3221 or 1-800-663-1919
604-687-4680 or 1-800-565-5297
The above BC Centre for Elder Advocacy and Support public legal education article was written in 2009. It contains general information only and is not a substitute for getting legal advice about your particular situation.