A Representation Agreement is a document that allows an adult to choose a person (or persons) to make decisions for them. It is similar to an Enduring Power of Attorney in that regard, but it normally is done to allow the Representative to make decisions regarding your health and personal care. An Enduring Power of Attorney is limited to financial and legal matters. So for most people need an Enduring Power of Attorney and an Enhanced Representation Agreement.
You can specify that the document only becomes effective on the happening of a later event, such as your subsequent mental incapability. There is no prescribed form so all similar documents are valid, if made in compliance with the Representation Agreement Act, but this normally would not include a “living will”. A person can also make an Advance Directive setting out their wishes in relation to health care, but there are specific wording and witnessing requirements for an Advance Directive to be valid in B.C..
The Representation Agreement Act sets out procedures for the creation, execution and challenge of a Representation Agreement. Only one witness is needed if the witness is a lawyer or notary. As well, the Act lowers the level of capability needed to enter into a “standard” section 7 Representation Agreement (which would cover routine financial affairs and minor health care issues) to something less than the capacity to enter into a contract. However, most people will want to make an “enhanced” (sometimes called a “comprehensive” or “section 9”) Representation Agreement to cover all matters, including end of life decision making.
An adult may also appoint another person to become a Monitor to try to make sure the Representative carries out their duties. In order to make a standard Representation Agreement, a person must appoint a Monitor unless the Representative is the adult’s spouse, the Public Guardian and Trustee or a Trust Company or a Credit Union.
Certain changes have been made to the Act since it originally was proclaimed in 2000. As well, the forms of Certificates for witnesses, representatives and monitors have been established for section 7 agreements.
Representation Agreements may be registered online through a Not-For-Profit organization called Nidus. This is particularly important if the named representative is not the spouse or child living near the person making the Representation Agreement.
At this time, we recommend that all clients make an enhanced Representation Agreement for health care and an Enduring Power of Attorney as part of your normal estate planning. Our firm has been very involved on behalf of the Canadian Bar Association in the consultation and review of this law. If you wish to make a Representation Agreement, we would be pleased to assist you. Please contact our office to make an appointment.
Hugh S. McLellan*
Deidre J. Herbert*
*DENOTES LAW CORPORATION
E-Mail: [email protected]
Web Site: www.mclellanherbert.com
Barristers & Solicitors
Suite 310 – 800 West Pender Street
Vancouver, British Columbia
Fax: (604) 683-5212