Section 7 RA and Supported Decision Making

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RA 7 – the ‘Swiss-Army knife’ of planning documents

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.

These agreements are made privately between the parties, and require no involvement of the courts, being initiated by the adult needing support.

The Representation Agreement Act allows an adult to appoint substitute or supported decision-makers provided the adult can meet the capacity standards set out in the legislation.

Principles of Legislation

  • to provide adults with a framework, complete with regulatory safeguards,
  • through which to choose and rely on the assistance of a trusted individual for making certain categories of decisions,
  • providing vulnerable adults and their families and friends with the resources necessary to preserve dignity, autonomy and the right to self-determination.

Value of a Legal Document

There is significant value in having a legal document that can recognize the autonomy and independence of an adult who might otherwise be brushed aside.

To some extent, having a supported decision-making legal document can help to overcome third party (banks, businesses) concerns about privacy issues.

Benefits of RA7

Participants stated that their agreement was important to them because it helped provide clarity and support to their decision-making process.

It was comforting for both representatives and extended family to know the wishes of the supported decision-maker would be followed when the adult was no longer able to make decisions for him or herself.

Supported decision-makers were also pleased that their wishes are being looked after and their family will not be left to make decisions unadvised.

– from “Understanding the Lived Experiences of Supported Decision-Making in Canada“

Decisions Included in RA7

  • the adult’s personal care;
  • routine management of the adult’s financial affairs, including, subject to the regulations,
  • payment of bills,
  • receipt and deposit of pension and other income,
  • purchases of food, accommodation and other services necessary for personal care, and
  • the making of investments;
  • major health care and minor health care, as defined in the Health Care (Consent) and Care Facility (Admission) Act, but not including the kinds of health care prescribed under section 34 (2) (f) of that Act;
  • obtaining legal services for the adult and instructing counsel to commence proceedings, except divorce proceedings, or to continue, compromise, defend or settle any legal proceedings on the adult’s behalf.

Decisions Excluded From RA7

A representative may not be authorized under this section:

  • to help make, or to make on the adult’s behalf, a decision to refuse health care necessary to preserve life, or
  • despite the objection of the adult, to physically restrain, move or manage the adult, or authorize another person to do these things.

[these are under s9 RA’s]

Monitors

A ‘monitor’ is an individual named in the representation agreement to ensure that the representative is acting honestly, in good faith, and with the care, skill, and diligence of a reasonably prudent person.

The monitor may visit and speak with the represented adult at any time and inquire about the assistance they are receiving.

A monitor is not required if spouse is representative, or there are 2 or more representatives (required to act unanimously), or the Public Guardian and Trustee, a credit union or a trust company is named as the Representative.

Report to and by Monitor

If, as a result of their monitoring, the monitor has reason to believe the representative is serving inappropriately, the monitor may require the representative to produce documents justifying his or her actions, and to report regularly to the monitor.

If all other steps have failed, the monitor must inform the Public Guardian and Trustee, who will investigate the issues.

Four Common Certificates – s 7 RA

cert-4 cert-3 cert-2 cert1

These certificates will be required before a section 7 Representation Agreement becomes effective.

  • Form 1 (Certificate of Representative or Alternate Representative);
  • Form 2 (Certificate of Monitor – if applicable);
  • Form 3 (Certificate of Person Signing for the Adult – if applicable); and
  • Form 4 (Certificate of Witnesses)

Court Involvement

Under the Act, representation agreements appear before court only when a representative applies to the court for directions about the interpretation of a provision in the agreement,

Or

 where the Public Guardian and Trustee pursues an objection by a party.

Otherwise, a representation agreement under the Act remains an entirely private contract.

Comparing RA`s

Section 7 – Standard Powers Section 9 – Enhanced Powers
  • Minor/major health care
  • Personal Care
  • Routine financial management (see Regulation)
  • Obtaining legal services and instructing counsel

Capacity – low

[NOT end-of life matters]

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

Capacity – similar to contract

 

 

[NOT financial or legal matters]


Capacity and s7 RAs

Capacity Test – s. 7 RA

The Act imposes lower capacity standards than appear in other statutes, standards that can be met by adults who would not likely meet the capacity requirements to create other personal planning documents, such as powers of attorney.

Not Part of Capacity Determination

Capacity is not determined by whether or not the vulnerable adult can

  • enter into a contract,
  • manage their health and personal care
  • manage legal or financial affairs.

NOTE – Capacity is presumed unless proven otherwise (s. 3)

Relevant factors

Capacity is determined by taking into account all relevant factors, including whether the adult:

  • Communicated a desire to have a supported decision-maker
  • Demonstrated choice and preference, or can express approval or disapproval
  • Is aware that making representation agreement will affect them
  • Has a relationship with the proposed supported decision-maker that is characterized by trust.

Unusual Statutory Language

For the supporters of the new system, moving to a functional capacity test that enumerates such subjective terms as “feelings of approval” or a relationship “characterized by trust” bring the legislative system into the circles of support and the reality of engaging with some members of the community of persons with intellectual disabilities.

For critics, these terms are unquantifiable, easy to say but nearly impossible to interpret in reality.

This sort of subjective examination of wishes and feelings represent such a “low” level of capacity that representation agreements might put people with capacity challenges at greater risk of abuse.

– from “Understanding the Lived Experiences of Supported Decision-Making in Canada“