Representation Agreements

A Representation Agreement is a document used either for supported or substituted decision making – regarding health care and personal care matters.  BC’s Representation Agreement Act is considered pioneer legislation, being one of the first self- contained supported decision-making legal regimes in the world.

Definition

There is no definition of “representation agreement” under the Representation Agreement Act, other than the rather tautological “means an agreement made under section 7 or 9.”  Section 2 of the Act provides some  help:

Section 2 – Purpose of This Act

The purpose of this Act is to provide a mechanism:

• to allow adults to arrange in advance how, when and by whom, decisions about their health care or personal care, the routine management of their financial affairs, or other matters will be made if they become incapable of making decisions independently, and

• to avoid the need for the court to appoint someone to help adults make decisions, or someone to make decisions for adults, when they are incapable of making decisions independently.

Types of Representation Agreements

Section 7

‘Standard’ Powers:

  • Minor/major health care
  • Personal Care
  • Routine financial management
  • Obtaining legal services and instructing counsel

 

Section 9

‘Enhanced’ Powers:

  • Minor/major health care+
  • Personal Care +
  • End-of-life decisions

Note – although ‘enhanced’ – no financial or legal matters.

 

Minor and Major Health Care

Personal Care

Section 7 Choices

A Representative appointed under section 7 can have authority to:

•help adult make decisions…

+/or

•make decisions on adult’s behalf…

regarding any or all of –

•personal care

•major health care and minor health care

•routine management of financial affairs

•obtaining legal services and instructing counsel

Routine Financial Management

The provision for ‘routine financial management’ combined with the very low capacity threshold to make a s. 7 RA, means this can be very useful in cases where an older adult is ‘slipping’ and they have not made any power of attorney, trust agreement, joint account provisions, etc.

Routine Financial Management — A to Z (literally)

For the purposes of section 7 (1) (b) of the Act, the following activities constitute “routine management of the adult’s financial affairs”:

a) paying the adult’s bills;

b) receiving the adult’s pension, income and other money;

c) depositing the adult’s pension, income and other money in the adult’s accounts;

d) opening accounts in the adult’s name at financial institutions;

e) withdrawing money from, transferring money between or closing the adult’s

accounts;

f) receiving and confirming statements of account, passbooks or notices from a

financial institution for the purpose of reconciling the adult’s accounts;

g) signing, endorsing, stopping payment on, negotiating, cashing or otherwise

dealing with cheques, bank drafts and other negotiable instruments on the adult’s

behalf;

h) renewing or refinancing, on the adult’s behalf, with the same or another lender, a loan, including a mortgage, if

(i) the principal does not exceed the amount outstanding on the loan at the time of the

renewal or refinancing, and

(ii) in case of a mortgage, no new registration is made in the land title office respecting the renewal or refinancing;

i) making payment on the adult’s behalf on a loan, including a mortgage, that

(i)exists at the time the Representative Agreement comes into effect, or

(ii) is a renewal or refinancing under paragraph (h) of a loan referred to in that

paragraph;

j) taking steps under the Land Tax Deferral Act for deferral of property taxes on the adult’s home;

k) taking steps to obtain benefits or entitlements for the adult, including financial benefits or entitlements;

l) purchasing, renewing or canceling household, motor vehicle or other insurance on the adult’s behalf, other than purchasing a new life insurance policy on the adult’s life;

m) purchasing goods and services for the adult that are consistent with the adult’s means and lifestyle;

n) obtaining accommodation for the adult other than by the purchase of real property;

o) selling any of the adult’s personal or household effects, including a motor vehicle;

p) establishing an RRSP for the adult;

q) making contributions to the adult’s RRSP and RPP;

r) converting the adult’s RRSP to a RRIF or annuity and creating a beneficiary designation in respect of the RRIF or annuity that is consistent with the beneficiary designation made by the adult in respect of that RRSP;

s) making, in the manner provided in the Trustee Act, any investment that a trustee is authorized to make under that Act;

t) disposing of the adult’s investments;

u) exercising any voting rights, share options or other rights or options relating to shares held by the adult;

v) making donations on the adult’s behalf to registered charities, but only if this is

(i) consistent with the adult’s financial means at the time of the donation

and with the adult’s past practices, and

(ii) the total amount donated in any year does not exceed 3% of the adult’s

taxable income for that year;

w) in relation to income tax,

(i) completing and submitting the adult’s returns,

(ii) dealing, on the adult’s behalf, with assessments,

reassessments, additional assessments and all related matters, and

(iii) subject to the Income Tax Act and the Income Tax Act (Canada), signing, on the

adult’s behalf, all documents, including consents, concerning anything referred to in

sub-paragraphs (i) and (ii);

x) safekeeping the adult’s documents and property;

y) leasing a safety deposit box for the adult, entering the adult’s

safety deposit box, removing its contents and surrendering the box;

z) redirecting the adult’s mail;

And doing anything that is consequential or incidental to performing an activity described in paragraphs (a) to (z), and necessary or advisable to protect the interests and enforce the rights of the  adult in relation to any matter arising out of the performance of that activity.

It can be helpful to see what is not routine financial management to appreciate what ‘routine’ means:

NOT Routine Management

“Routine management of the adult’s financial affairs” does not include any of the following:

a) using or renewing the adult’s credit card or line of credit or obtaining a credit card or line of credit for the adult;

b) subject to subsection (1) (h), instituting on the adult’s behalf a new loan, including a mortgage;

c) purchasing or disposing of real property on the adult’s behalf;

d) on the adult’s behalf, guaranteeing a loan, posting security or indemnifying a

third party;

e) lending the adult’s personal property or, subject to subsection (1) (v),

disposing of it by gift;

f) on the adult’s behalf, revoking or amending a beneficiary designation or,

subject to subsection (1) (r), creating a new beneficiary designation;

g) acting, on the adult’s behalf, as director or officer of a company.

Monitors

A monitor is a person responsible for making reasonable efforts to determine whether a rep is complying with their duties under the Act.

A monitor is required if the Rep is authorized to make, or help make, decisions concerning routine management of financial affairs

But not if the rep is the adult’s spouse, the Public Guardian and Trustee, a trust company or a credit union, and not if 2 or more reps with this power.

Note that a monitor must complete a Certificate (Form 2)

Reasons to name Alternate Rep

An alternate can take place of Rep if the Rep:

  • dies
  • becomes incapable
  • resigns in accordance with the Representation Agreement Act, or
  • is the adult’s spouse, as defined in the Representation Agreement Act, at the time of making the Representation Agreement, and the marriage or marriage-like relationship ends

Four Common Certificates – s 7 RA

  • Form 1 (Certificate of Representative or Alternate Representative);
  • Form 2 (Certificate of Monitor), if the representation agreement names a monitor;
  • Form 3 (Certificate of Person Signing for the Adult), if a person is signing the representation agreement on behalf of the adult;
  • Form 4 (Certificate of Witnesses).

These certificates can be found in the Representation Agreement Regulation.  Versions of these forms are available in Word here:

Form 1 Certificate of Representative

Form 2 Certificate of Monitor

Form 3 Certificate of Person Signing for the Adult

Form 4 Certificate of Witness


Section 9 RA

General or Specific Powers?

A s. 9 agreement either authorizes Rep to

General Statement – to do anything that the representative considers necessary in relation to the personal care or health care of the adult,

OR –

Specific Powers – one or more of the things in relation to personal care or health care set out in ss. 9 (1) (b) of the Representation Act.

Section 9 Powers

Section 9(1)(b) – RA could authorize Representative to:

  • decide where the adult is to live and with whom, including whether the adult should live in a care facility;
  • decide whether the adult should work and, if so, the type of work, the employer, and any related matters;
  • decide whether the adult should participate in any educational, social, vocational or other activity;
  • decide whether the adult should have contact or associate with another person;
  • decide whether the adult should apply for any license, permit, approval or other authorization required by law for the performance of an activity
  • make day-to-day decisions on behalf of the adult, including decisions about the diet or dress of the adult;
  • give or refuse consent to health care for the adult, including giving or refusing consent, in the circumstances specified in the agreement, to specified kinds of health care, even though the adult refuses to give consent at the time the health care is provided (can include giving or refusing consent to health care necessary to preserve life;
  • despite any objection of the adult, physically restrain, move and manage the adult and authorize another person to do these things, if necessary to provide personal care or health care to the adult.

Limitations on Representative’s Powers

The Representative may not (unless specifically authorized by s9 RA):

  • give or refuse consent on the adult’s behalf to any type of health care prescribed under section 34 (2) (f) of the Health Care (Consent) and Care Facility (Admission) Act;
  • make arrangements for the temporary care and education of the adult’s minor children, or any other persons who are cared for or supported by the adult;
  • interfere with the adult’s religious practices.

The Representative may never be authorized to:

  • refuse consent to those matters in relation to the Mental Health Act set out in section 11 – admission to facility; provision of care or treatment in detention or on leave or in approved home.
  • consent to the provision of professional services, care or treatment to the adult for the purposes of sterilization for non-therapeutic purposes;
  • make or change a Will for the adult.

When RA ends

RA terminates where:

  • the adult who made the agreement revokes the RA;
  • the adult who made the agreement or the Representative dies;
  • the court issues an order that cancels the RA;
  • the Representative becomes incapable or resigns; or
  • as provided for under s. 19 of the Patients Property Act.

9 RA – End-of-Life Wishes Spectrum

From:

Where there’s life there’s hope

… that all possible medical measures are taken to keep me alive. My suffering should be relieved as far as possible, but I accept that certain burdens may be associated with  the preservation of my life.

To:

Death is part of life

… that medical treatment should aim above all to relieve suffering. Prolonging life at all costs is not the priority for me. I accept that my life may be shortened if certain medical treatments are withheld.

An Older Adult Might Ask

Would I want life support or life-prolonging medical interventions if it means I could no longer:

  • Enjoy my life and activities the same way I do now?
  • Get out of bed, walk or go outside on my own?
  • Recognize and communicate meaningfully with my relatives or friends?
  • Think for myself?

Changing Values & Timing

Hedonic Treadmill

The psychological theory that humans rapidly adapt to their current situation, becoming habituated to the good or the bad.

We are more sensitive to our relative status: both that which we recently have and that which we perceive others to enjoy.

Response Shift

Changing internal standards, values and the conceptualization of quality of life.

You may be more willing to accept a more limited living situation in the future than you think.  Or you may not.

Timing Issues

There may some things you would want to be present for, no matter what

For example, if your granddaughter was pregnant with your first great-grandchild, you might want to be kept alive long enough for the birth

Capacity Tests – s7 & s9 RAs

Section 7 RA

An adult can make a s. 7 RA, even though the adult is incapable of

(a) making a contract,

(b) managing his or her health care, personal care or legal matters, or

(c) the routine management of his or her financial affairs.

In deciding capability, all relevant factors must be considered, for example, whether the adult:

• communicates a desire to have a representative make, help make, or stop making decisions;

• demonstrates choices and preferences and can express feelings of approval or disapproval of others;

• is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult;

• has a relationship with the representative that is characterized by trust.

Section 9 RA

The adult must be capable of understanding:

• the nature and

• consequences

of the proposed agreement.

Higher standard of capacity – similar to standard to contract.


Practice Resources

Precedents

Representation Agreement Questionnaire

Representation Agreement Checklist

Representation Agreement – Section 7

Representation Agreement – Section 9

RA s9 envelope 6X 9

Roles and Responsibilities of Representative

 

 

 

Note – we recommend providing the named representative with a copy of the Nidus fact sheet Role of a Representative and provide any monitor named with the fact sheet Role of a Monitor

 

 

 

 

Suggested Procedure

Procedure Planning Documents[click on image to view larger size]

Nidus Materials

Includes information on representation agreements in general, and the side menu on the page includes a RA 7 Fact Sheet, an RA 9 Fact Sheet, a list of Resources and Links.

Government of BC

Advance Care Planning: Making your Future Health Care Decisions – this Government of BC website on advance care planning includes a link to My Voice – Expressing My Wishes for Future Health Care Treatment – Advance Care Planning Guide. Note that My Voice is also available in

There is an accompanying video:

PGT

It’s Your Choice: Personal Planning Tools  – this publication reviews: Enduring Power of Attorney; Representation Agreements (Representation Agreement for Financial Affairs and Representation Agreement for Personal and Health Care Decisions); Advance Directives; Nomination of a Committee; Other Personal Planning Considerations; and, Helpful Links.