What is a representation agreement?
Many people assume a power of attorney gives the attorney the right to make decisions about a person’s health care. In British Columbia, a power of attorney does not go that far. If you need help with making decisions about your health care, or if you know someone who does, you should consider a representation agreement.
There are two types of representation agreements: a section 7 agreement and a section 9 agreement. The section 7 agreement is an agreement in which one person, called the adult, names one or more people to be the adult’s representative to help them make decisions, or make decisions in relation to:
- Routine financial affairs
- Legal affairs
- Major and minor health care
- Personal care
Routine financial affairs includes receiving and depositing pension and other income; paying bills; buying food, accommodation and other necessities; and making investments. Personally, I wouldn’t have thought investing is a routine financial matter, but the purpose of section 7 was to allow a representative to act for a person with possibly diminished mental capacity.
So, although in some ways, the section 7 agreement is limited in scope, it’s broader in the sense that someone without contractual capacity can sign a section 7 agreement.
The test for deciding whether someone has capacity to enter into a section 7 agreement is to look at all the relevant factors, including:
- Do they express a desire to have someone help them make decisions?
- Can they demonstrate choices and preferences, and can they express approval or disapproval of someone?
- Do they understand the representative can make decisions for them or stop making decisions for them?
- Is their relationship with the representative one of trust?
What powers and duties does a representative have? Well, the powers of a section 7 representative are restricted to what is in the representation agreement. If there are no restrictions, then the representative can help the adult make decisions or make decisions on their behalf, even against their wishes. But they have to consult with the adult where it’s reasonably possible to do so, and they must comply with those wishes if it’s reasonable to do so. If it’s not possible to consult with the adult or it’s not reasonable to comply with their wishes, there is a kind of tiered process to ascertain how they must act.
- They must comply with the wishes of the adult as expressed when the adult was capable
- If they can’t ascertain those wishes, they must comply with the adult’s known beliefs and values
- If they don’t know the beliefs and values, they must act in the adult’s best interest
The safeguard in a section 7 agreement that includes routine financial affairs is that the adult must appoint a monitor, unless the representative is the adult’s spouse, the Public Guardian and Trustee, or a trust company or credit union. The monitor must make reasonable efforts to determine if the representative is properly carrying out their duties. They can ask the representative to produce accounts and records or to report to them on specific matters. If the monitor believes the representative is not complying with their duties, the monitor must notify the adult and all representatives, including the one believed to be in non-compliance and all alternate monitors, if any. And if the monitor continues to believe the representative is not performing properly, the monitor must report to the Public Guardian and Trustee.
The section 9 agreement can be very broad. Unless it is restricted, a representative under this type of agreement can do anything the adult can do, even if the adult objects. But it is limited to personal care and health care. For example, a grown-up child may decide the parent needs to move into a care facility but the parent objects. The child, if named as representative, can override the parent’s objections.
The test for mental capacity for section 9 agreements is stricter than that for section 7 agreements: the adult must be capable of understanding the nature and consequences of the representation agreement.
A representative under a section 9 agreement must act honestly and in good faith. They must exercise the care, diligence and skill of a reasonably prudent person. They must act within the scope of authority the representation agreement gives them. And they must keep records.
There are some important things a representative cannot do. They can’t make or change an adult’s will; they can’t participate in divorce proceedings on behalf of the adult; and they can’t make decisions to sterilize the adult.
As for payment, the representative may not be paid unless the representation agreement sets out the amount or rate of compensation. Of course, they’re entitled to be reimbursed for expenses.