REPRESENTATION AGREEMENTS

• The Representation Agreement Act
• Representatives Appointed by People of Diminished Mental Capacity
• Care Agreements
• Living Wills
• Powers of Attorney Versus Representation Agreements
• If You Don't Have a Power of Attorney or a Representation Agreement

The Representation Agreement Act

On February 28, 2000, the new Representation Agreement Act of British Columbia came into force. The intention of this act was to phase out the existing enduring powers of attorney and replace them with representation agreements. This is now unlikely to occur due to concerns about the complexities of the Representation Agreement Act. New power of attorney legislation will likely be enacted in the future to replace financial representation agreements but will preserve health care representation agreements. Agreements prepared under any previously existing legislation will probably be grandfathered, which means they will remain valid; only new documents will be affected by any new legislation.

Probably the most novel item in the new Act is the ability to empower a health care representative to make health care decisions for the grantor. The enhanced health care representation agreement indicates what level of care you wish if you are incapable of making your own decision. For public information on advance health care directives, you can contact the Vancouver Island Health Authority at advance.directives@caphealth.org. Perhaps more important is the ability of the representative to refuse health care. In our opinion, this is an important facet of a health care representation agreement.

Representatives Appointed by People of Diminished Mental Capacity.

Someone with diminished mental capacity cannot appoint a representative to look after all their health care and financial affairs.  To do this one requires an enhanced form of representation agreement, which also requires legal advice to be given to the grantor by a lawyer.

For example, an enhanced representation agreement would allow the representative to sell real estate, but limited powers can be granted by a person of diminished capacity. Routine management of an adult's financial affairs such as banking and paying bills and making routine health care decisions would be covered by a standard agreement.

A standard representation agreement would be ideal for somebody in the early stages of Alzheimer disease who may not be capable of signing a standard power of attorney or enhanced representation agreement, but still may have the ability to enter into this type of representation agreement.

Care Agreements

A care agreement is an agreement between someone who requires personal care and the giver of the care. It is usually a family arrangement that involves a transfer of property in exchange for a promise of “care for life.” The main problem with them is that they are usually oral agreements, and things can go wrong.

Read more about Care Agreements.

Living Wills

In the past, people often signed so-called "living Wills" along with their powers of attorney and Wills, but the living Wills had no statutory effect. Now these living Wills do have a statutory effect, but if you have one that's quite old, you should update it to the new Act's format. These documents often contain a declaration that the grantor has no desire to be kept artificially alive. Because this declaration is made at the time the grantor is of sound mind, it is likely to have significant force with health care providers if there is a question whether life support should continue.

Powers of Attorney Versus Representation Agreements

Representation agreements for financial affairs are not usually recommended because they are quite a bit more complicated than most people require. A representation agreement is a good idea if the grantor wishes to have

• a number of alternate representatives,
• a monitor appointed to oversee the decisions of the representatives,
• the appointment of the representative to be conditional upon mental infirmity, and / or
• only certain powers granted to the representative.

In most husband-and-wife situations there is a great deal of trust and a representation agreement is not required for financial decisions. Powers of attorney are usually less expensive to prepare.

If You Don't Have a Power of Attorney or a Representation Agreement

If you don't have an enduring power of attorney and / or you don't have a representation agreement and become mentally incapable, someone has to apply to the court to have a "committee" appointed to look after your financial affairs, or the Public Trustee will do the job.

In the latter case, health care decisions would be made according to the Health Care (Consent) Act and Care Facility (Admission) Act. This act provides for a hierarchy of individuals to make decisions. For example, a spouse has priority over children and then all adult children have equal rights. Obviously, if there is no spouse and the children cannot agree on proposed health care, it is highly unlikely that a proactive decision not to provide treatment would be made.

Read about a well-known real-life case in Life And Death Questions.

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