Representation Agreement

What is a Representation Agreement?

Short Answer:

A Representation Agreement is a legal document that gives someone else the authority to make health and personal care decisions on your behalf if you become incapable of making those decisions yourself.

Long Answer:

A Representation Agreement is a legal document that gives someone else the authority to make health and personal care decisions on your behalf if you become incapable of making those decisions yourself.

Your representative will be able to make decisions regarding what medical treatments you receive, where you live, whether you should be placed in a care facility, and even what you will eat and wear.

The most significant power your representative can have is the power to give or refuse consent to life support.

In a Representation Agreement, the person giving the authority is called the “adult”.

The person who receives the authority is referred to as the “representative”.

The representative will be able to make health and personal care decisions on behalf of the adult if they become incapable. The adult and the representative must be at least 19 years old.

A Representation Agreement does not take away your ability to make decisions as long as you are capable. Your representative cannot make any decisions on your behalf unless you become incapable of making decisions for yourself.

There are two types of Representation Agreements: Standard (often called a “Section 7 Representation Agreement”, and Non-Standard (often called a “Section 9 Representation Agreement” or an “Enhanced Representation Agreement”). Here we will be mainly focusing on the Non-Standard Representation Agreement.

What is the difference between a Representation Agreement and a Power of Attorney?

A Representation Agreement grants authority for decisions relating to health care and personal care matters only.

A Power of Attorney grants authority for decisions relating to financial and legal matters only.

Who should have a Representation Agreement?

A Representation Agreement is useful for:

  • People who have specific wishes as to what treatments they would want (or not want)
  • People who do not want to be kept on life support
  • People who want to choose who can make decisions for them ahead of time
  • People who work jobs that may be considered dangerous
  • People who may eventually become incapable

Example 1

Trevor is a Jehovah’s Witness. As a Jehovah’s Witness, certain types of medical treatments involving blood are not allowed (e.g. blood transfusions).

Trevor would like to know that if he is unable to speak for himself, someone else can ensure that he does not receive blood transfusions.

Trevor makes a Representation Agreement naming his wife and his eldest son so that they can have the authority to give or refuse consent to any medical treatments that are not permitted by his faith.

Example 2

Miriam is elderly and has several health issues, but her mind is strong and she knows what she wants (and does not want).

She is certain that if her health worsens, she would not want to be kept alive with feeding tubes and breathing tubes.

She would like to die naturally and peacefully. She decides to make a Representation Agreement appointing her daughter as her representative, so her daughter can ensure that Miriam will not be given life support.

Example 3

Stanley is a widower with two children. He loves them both dearly but does not agree with his son when it comes to his opinion on life support.

His son would do anything to preserve his dad’s life, even if that is not what Stanley wants.

Stanley is afraid that if his son can make that decision, he could be kept on life support against his will.

However, Stanley knows that his daughter would follow his wishes, even if it meant refusing life support and ending his life.

He decides to appoint his daughter as his representative because he knows she will respect his wishes.

Example 4

Robert just started a new job as an RCMP officer. He wants to be sure that if he gets seriously injured on the job and is unable to speak for himself, his wife will be able to make decisions regarding his health and personal care.

He decides to make a Representation Agreement appointing his wife as his representative.

Example 5

Marilyn was told by her doctor that she is showing signs of early dementia.

Marilyn knows that if her dementia gets worse, she will no longer be able to make decisions for herself, and may even need to move to a care facility.

She wants to make sure that her two children will have the authority to decide what care facility she will go to if she is no longer capable of deciding herself.

She makes a Representation Agreement naming both of her children as her representatives.

Choosing the Representatives(s)

Short Answer:

Your representative(s) should be trustworthy, capable of understanding and making health and personal care-related decisions, and available to act when needed.

Long Answer:

A Representation agreement can be a powerful document. It gives the person named as representative full decision-making authority over your health and personal care, including the ability to refuse life support.

These can be difficult decisions to make for a loved one, so great care must be taken in choosing the right representative.

It should be someone trustworthy, capable, and available to act when necessary.

Your representative should be someone you trust to follow your wishes, even if those wishes conflict with what the representative wants.

For example, if you do not want to be kept on life support, but the person you want to make your representative would not be able to refuse life support on your behalf, then you should consider choosing someone else.

It is also important that your representative has a thorough understanding of your beliefs and wishes concerning your health and personal care.

It would be impossible to predetermine what you would want in every possible medical scenario, but they need to know enough to make an informed decision based on their knowledge of your beliefs in any given situation.

Your representative should be capable of making health and personal care-related decisions.

This means that your representative should be capable of understanding the nature of those decisions and how those decisions will affect your quality of life.

Your representative should also be available to act. If your first choice is a person who is extremely busy or constantly travelling for work, you may want to consider appointing an additional representative who will be more available.

Another thing to consider when appointing a representative is age. Your representative must be at least 19 years old.

Also, your representative cannot be someone who provides care services to you in exchange for compensation or someone who works at a facility where you receive care services in exchange for compensation (e.g. care aide, nurse, etc.).

Appointing more than one Representative

Short Answer:

When appointing multiple representatives, they can act jointly, separately, or successively.

Long Answer:

When appointing more than one representative, you can decide whether they must act jointly (the representatives must act together) or can act separately (each representative can act alone) or successively (you have a first representative who can act for you, and a secondary or alternate representative who can only act if the first representative cannot).

It is important to note that even when the representatives can act separately, they must still consult with each other and be in agreement when they use the Representation Agreement to act on your behalf.

Example 1

Sally wants to make a Representation Agreement appointing both of her children as representatives, but she wants them to act together. She does not want either child to be able to act alone. She decides to appoint her children jointly.

This means that each time one of her children wants to make a decision about Sally’s health or personal care, both children must act together.

Example 2

Sally wants to make a Representation Agreement appointing both of her children as representatives, but they live in different provinces so she feels it might be difficult for them to act jointly.

She is confident that her children will consult with each other when using the Representation Agreement and will not act without the other’s approval, so she appoints her children separately.

This means that when her children use the Representation Agreement, either child can act alone.

Example 3

Sally wants to make a Representation Agreement appointing her son as her representative, but she also wants her daughter to be a representative just in case something happens to her son.

She wants her son to act first, and her daughter to only be able to act if her son can no longer act for her.

She decides to appoint her children successively, so that her son is her first representative, and her daughter is an alternate (back-up) representative.

Types of Representation Agreements (Non-Standard vs. Standard Representation Agreements)
Non-standard Representation Agreement

Short Answer:

  • Designed for adults with full capacity
  • Provides the most comphrensive health and personal care decision-making authority
  • Does not give financial decision-making authority

Long Answer:

So far, when we have been discussing Representation Agreements, we have been referring to Non-Standard Representation Agreements, also known as “Enhanced Representation Agreements” or “Section 9 Representation Agreements”.

This is the most common type of Representation Agreement as it gives the widest range of decision-making authority under the Representation Agreement Act.

This includes minor health care decisions (e.g. routine dental treatment), major health care decisions (e.g. biopsies or major surgery), as well as the authority to refuse life support and effectively end your life.

It is designed to be executed by adults who have full capacity at the time of signing.

The representatives cannot act, however, until the adult has lost the capacity to make their own decisions.

While Non-standard Representation Agreements give the most authority with regards to health-related decisions, it does NOT give any financial decision-making authority.

It is presumed that if a person has the required capacity to make a Non-standard Representation Agreement, then they can also make an Enduring Power of Attorney which will give the most authority for financial decisions.

Example 1

Leonard went to see his notary about making a new Enduring Power of Attorney. His notary suggested also doing a Representation Agreement to cover health-care decisions.

Leonard decides to make an Enduring Power of Attorney and a Representation Agreement appointing his children so that they can manage all of his affairs if he loses capacity in the future.

Standard Representation Agreement

Short Answer:

  • Designed for adults who have already experienced a decline in capacity
  • Provides authority to make financial decisions as well as health and personal care decisions
  • Range of decision-making authority is more limited than a Non-standard Representation Agreement (health and personal care decision) and Power of Attorney (legal and financial decisions)

Long Answer:

Standard Representation Agreements are also known as Section 7 Representation Agreements. They are designed for adults who have already experienced a significant decline in capacity.

The capacity requirements for a Standard Representation Agreement are much lower than what is required for a Non-standard Representation Agreement.

One of the most distinctive features of a Standard Representation Agreement is that it can also give authority to make routine financial decisions.

Adults that have already experienced a decline in capacity will probably be unable to make an Enduring Power of Attorney due to its high capacity requirements. It is for this reason that the Standard Representation Agreement combines health and financial authority into a single document.

When it comes to financial decisions, a Standard Representation Agreement is not as powerful as an Enduring Power of Attorney.

For example, the Standard Representation Agreement does not give authority to sell or purchase real property.

When it comes to health-related decisions, the Standard Representation Agreement is not as powerful as the Non-standard Representation Agreement. For example, the Standard Representation Agreement does not give authority to refuse life support.

There are also limitations on what types of care facilities the Adult can be admitted to.

Example 1

Harold has a teenage son with an intellectual disability. His son is about to become an adult, and Harold will soon face some resistance from the bank and the government when he tries to assist his son with his finances.

He takes his son to a notary to get a Standard Representation Agreement appointing Harold as his representative.

Even though his son has an intellectual disability, he can still meet the capacity requirements and the document will give Harold the authority he needs to continue to manage his son’s finances.

It should also be noted that only spouses are allowed to act alone in a Standard Representation Agreement.

If the representative is anyone other than a spouse, then there must be at least two Representatives acting jointly, or a Representative and a Monitor.

A Monitor is a person who can be contacted and consulted with if anyone is concerned that the Representative is not acting properly.

What is “capacity” and how is it determined?

Short Answer:

When legal professionals speak of capacity or being capable, they are referring to a person’s ability to do something under the law, such as making a Representation Agreement.

To make a Representation Agreement, a person must meet the capacity requirements under the Representation Agreement Act.

A Non-Standard Representation Agreement requires full capacity, whereas a Standard Representation Agreement does not.

Long Answer:

When legal professionals speak of capacity or being capable, they are referring to a person’s ability to do something under the law, such as making a Representation Agreement.

To make a Representation Agreement, a person must meet the capacity requirements under the Representation Agreement Act. Non-standard Representation Agreements and Standard Representation Agreements have different capacity requirements, which are explained below.

Non-standard Representation Agreement

To prove that an adult has the required capacity to sign a Non-standard Representation Agreement, the adult must show that they are capable of understanding the nature and consequences of the Representation Agreement.

This means that they understand the full extent of the authority that the representative will have over their health and personal care decisions.

The notary or lawyer will interview the adult and ask various questions to satisfy themselves that the adult meets the capacity requirements.

If an adult already has begun to suffer from medical conditions that affect their capacity (e.g. dementia) or if capacity is questionable, they may still have the required capacity for a Non-standard Representation Agreement.

In these cases, the notary or lawyer may request a doctor’s letter confirming that the adult has capacity before proceeding.

Standard Representation Agreement

If an adult does not meet the capacity requirements for a Non-standard Representation Agreement, they may still meet the requirements for a Standard Representation Agreement, as the requirements are much lower.

For this type of Representation Agreement, the adult may already be incapable of making a contract, making their own decisions, and managing their financial affairs.

To prove that an adult has the required capacity to sign a Standard Representation Agreement, the adult must be able to:

  • Communicate a desire to have a representative assist with decision-making
  • Demonstrate choices and preferences
  • Express approval or disapproval of others
  • Show awareness that the representative will be able to make decisions that affect the adult’s life

Also, the representative who wishes to be named must have an existing relationship with the adult that is characterized by trust (e.g. spouse or close family member).

What happens if someone becomes incapable, and they do not have a Representation Agreement?

Short Answer:

Doctor can appoint a Temporary Substitute Decision Maker (TSDM)

You can apply for a court order making you a committee for the person you want to represent

Long Answer:

If an adult becomes incapable and does not have a Representation Agreement, they may still be able to make a Standard Representation Agreement, which has low capacity requirements.

If the adult does not meet the capacity requirements for a Standard Representation Agreement, then there are two options. The health care provider will often appoint a Temporary Substitute Decision Maker (“TSDM”) to provide consent for certain types of health care. The TSDM will be chosen based on their relationship to the adult in the following order:

1) spouse; 2) child; 3) parent; 4) sibling; 5) grandparents; 6) grandchild; 7) relative by birth or adoption; 8) close friend; 9) relative by marriage.

The TSDM’s authority is more limited than that of a representative.

For example, for a TSDM to refuse life support there must be a consensus between the TSDM and the adult’s health care providers that it is the best decision for the adult.

A TSDM can be adequate for hospital stays, but it is not ideal for long-term care. If an adult does not have a Representation Agreement and will require decisions to be made more frequently or for the foreseeable future, a committeship may be more appropriate (see below).

Committeeship

If you are not a representative for an adult and you need legal authority to manage their health and personal care, then you will need to obtain a court order from the Supreme Court of British Columbia.

This is called a “committeeship”. There are two types of committeeships: committee of person (for personal and medical decisions), and committee of estate (for financial and legal decisions). You can apply to obtain one or the other, or both committeeships.

To be appointed as a person’s committee, you must apply to the Supreme Court of British Columbia for an order under the Patients Property Act.

You will need sworn statements from two separate British Columbia doctors confirming that the adult is no longer capable of managing their affairs. The process can take several months and can be quite expensive (normally lawyers are involved in making this type of application).

There is also a chance the court will reject your application if you do not meet their requirements or if another family member contests your application.

It is for these reasons that we recommend getting a Representation Agreement, as it can save your family members from unnecessary challenges and costs resulting from not having it.

It also allows you to choose the person(s) who will represent you, rather than letting the court decide.

Changing (or revoking) a Representation Agreement

Short Answer:

Changing a Representation Agreement normally involves revoking the existing Representation Agreement, and then making a new Representation Agreement with the desired changes.

Long Answer:

Changing a Representation Agreement normally involves revoking the existing Representation Agreement, and then making a new Representation Agreement with the desired changes.

If you have already made a Representation Agreement and you simply want to add a person (have an additional representative), then we can do a new Representation Agreement for that person and leave the existing Representation Agreement intact.

Unlike a Will, making a new Representation Agreement does not automatically revoke one that was previously made.

Example 1

Sally previously made a Representation Agreement appointing her son as her representative. She recently had a falling out with her son and does not feel comfortable with him making decisions about her health when she is incapable.

She would now like her daughter to be her representative instead of her son.

Sally decides to revoke the Representation Agreement that appointed her son and make a new one appointing her daughter.

Example 2

Sally previously made a Representation Agreement appointing her son as her representative.

Her son recently moved to Australia so Sally would like her daughter (who still lives in BC) to also be her representative.

Sally decides to make a new Representation Agreement appointing her daughter so that both children will be representatives for Sally.

Changing or revoking a Representation Agreement requires that the adult have capacity at the time of the revocation, and that written notice be delivered to the representative (and monitor, if applicable)

How does a Representation Agreement end?

A Representation Agreement can end in several ways, including:

  • If the adult dies
  • If the adult revokes the Representation Agreement
  • If the Representation Agreement is terminated by the court

Additionally, the authority of a representative can end in several ways, including:

  • If the representative dies
  • If the representative resigns
  • If the representative’s authority is revoked by the adult
  • If the representative is a spouse and the marriage ends

Revoking a Representation Agreement (or the authority of a representative) requires that the adult have legal capacity at the time of the revocation and that written notice be delivered to the representative (and monitor, if applicable)

Undue Influence

Short Answer:

Undue influence is when somebody is using a position of authority to pressure you into signing something or giving them something.

If we believe that you are being coerced or unduly influenced, we will not proceed.

Long Answer:

Undue influence is when somebody is using a position of authority to pressure you into signing something or giving them something.

This does not always involve a threat of violence. It could also involve an implied threat to withhold assistance or access to something you want.

If somebody else brought you to our office, we may ask them to leave the room in order to confirm that you are acting out of your own free-will and not being coerced or unduly influenced into making or changing a Representation Agreement.

If we believe that you are being coerced or unduly influenced, we will not proceed.

Example 1:

A friend you depend on to give you rides to your doctor’s appointments and pick up groceries is asking you to make a Representation Agreement.

They imply that if you do not make them your representative, they will stop helping you.

Example 2:

You have already made a Representation Agreement naming your son as your representative.

Your daughter asks you revoke it and make her your representative instead. She says that if you do not, then she will not let you see your grandchildren anymore.

Example 3:

You are on a fixed income and live with your son. Both of you know that you cannot survive on your own.

He asks you to make a Representation Agreement naming him as your representative. Although he does not make any threats, you feel pressured to do it because you do not want him to abandon you.

Process

We try to make the process as easy as possible for obtaining a Representation Agreement.

Quite often, it can be done within the span of a 30-minute appointment at our office.

All you need to bring to the appointment is some information (see below) about the representative(s) you wish you appoint, and at least one piece of unexpired government-issued photo identification (e.g. driver’s license).

At the appointment:

  1. We will meet with you, explain the document, and answer all questions. It is standard practice to meet with you alone to ensure there is no undue influence.
  2. We will ask some questions to gather information and confirm legal capacity, including:
    1. Why you want a Representation Agreement.
    2. Information about your family (e.g. marital status, children, etc.)
  3. We will then take instructions:
    1. Who you wish to appoint and why.
    2. If you are appointing more than one representative, whether they should act jointly, separately, or successively?
    3. Do you want any specific instructions included in the Representation Agreement?
  4. If we can obtain all the required information, we will then prepare the document while you wait, review the document with you and then witness you sign the document. Once the document is signed by you and your representatives, you will be provided with an original Representation Agreement and some certified copies.

For the representatives(s), we will need to know the following:

  • Their full legal name
  • Their address
  • Their relationship to you
  • Their occupation (if doing a Standard Representation Agreement)
  • Their phone number and/or email address (if doing a Standard
  • Representation Agreement)
  • Their date of birth (if doing a Standard Representation Agreement)

If your representative(s) are not able to attend the meeting, they can come to our office at a later date to sign the Representation Agreement.

The signatures of the representatives do not need to be witnessed (unless you are doing a Standard Representation Agreement), so the document can be taken from the office to be signed elsewhere if necessary.

Table of Contents

Update May 2020

Our Chilliwack and Abbotsford offices remain open on an appointment-only basis as we do our part to practice social distancing.

Please note our Chilliwack office will be closed on Saturdays until further notice.

Our Hope location is closed until further notice.