Currently, in BC the main function of Representation Agreements is to appoint someone who has the legal authority to make health and personal care decisions on behalf of the adult should the adult be unable to do so for himself and also to set out any health care wishes the adult would like honoured in the event that he cannot communicate these wishes himself.
- Section 3 of the Representation Agreement Act presumes that every adult is fully capable of managing their affairs and has the ability to make binding agreements. Thus, unless an adult is incapable, she can enter into a representation agreement in which she names a representative.
- An adult can designate another adult or the Public Trustee to represent the adult in health care matters. Credit unions and trust companies are only permitted to represent an adult in financial and legal matters.
- A representative is in a fiduciary relationship with the adult. Thus, the representative must act in good faith, exercise the care and skill of a reasonably prudent person and cannot act outside the scope of authority given to him under the representation agreement.
There are two kinds of Representation Agreements:
- Standard Representation Agreements
- Enhanced Representation Agreements
Standard Representation Agreements (S.7 Agreements)
An adult may enter into a standard (Section 7) representation agreement even though the adult is incapable of making a contract, managing her health care, personal care, legal matters, or financial affairs. To determine whether an adult is capable of making such an agreement, all relevant factors must be considered. Examples of such factors include:
- Whether the adult communicates a desire to have a representative decision-maker;
- Whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;
- Whether the adult is aware of the effect of a representative agreement and its terms; and
- Whether the adult and the representative have a relationship of trust.
In a standard representation agreement, an adult may authorize the representative to make decisions about any or all of the following:
- Personal care including admission to a care facility if the facility is a family care home, a group home for the mentally handicapped or a mental health boarding home;
- Managing financial affairs;
- Health care decisions; and
- Legal services other than commencing divorce proceedings.
The representative in a s. 7 agreement is not allowed to:
- Refuse health care necessary to preserve life;
- Physically restrain, move or manage the adult (or authorize another person to do these things) despite the objection of the adult;
Enhanced Representation Agreements (S.9 Agreements)
An enhanced (section 9) representation agreement allows for an agreement which goes beyond the limited provisions of a standard section 7 agreement. It can be as broad or detailed as the adult wishes it to be. Unlike a section 7 agreement, it requires the adult be capable of understanding the nature and consequences of the agreement.
A representative appointed in an enhanced representation agreement has the health care and personal care powers as one appointed in a section 7 standard agreement, and in addition, may be authorized to do the following:
- Physically restrain, move or manage the adult, or have the adult physically restrained, moved or managed, when necessary and despite the objections of the adult;
- Give consent , in the circumstances specified in the agreement, to specified kinds of health care, even though the adult is refusing to give consent at the time the health care is provided;
- Refuse consent to specified kinds of health care, including health care necessary to preserve life; and
- Make day-to-day decisions on behalf of the adult including decisions about diet, dress, employment matters, living environment, applications for licenses and permits, participation in educational, social vocational or other activity.
Unless it is expressly provided in this enhanced agreement, a representative must not:
- Interfere with the adult’s religious practices; or
- Make arrangements for the temporary care and education of the adult’s minor children or any other persons who are supported by the adult.
If a representative exercises authority improperly, the action is deemed to be valid and binding on the adult in respect of persons affected who didn’t know the excise of authority was improper.