One Canadian in seven is at least 65 years old.

By 2026, that figure will reach one in five.

British Columbia has one of the highest proportions of seniors in Canada, many attracted by the weather in the southern parts of the province.

As elsewhere in Canada, a person's right to predetermine health-care decisions, to be referred to at a time when the patient is otherwise incapable, has historically been taboo topcs for legislative assemblies. Too close to God.

Exotic and criminal law words like euthanasia, suicide, assisted suicide and Dr. Kevorkian floated around underscoring the illegal nature of what was then referred to as a living will.

If a person became incapable of managing their person - or their property where there was no effective power of attorney - the only solution was to make an application to the court pursuant to an oddly-named statute, the Patients Property Act ("PPA", eventually to be repealed, the expectation is, by a new Adult Guardianship Act which, as of June 20, 2013, is only in force piecemeal and not the "Part 2" regarding the replacement of the "PPA").

The complex and legal - and therefore expensive - characteristics of the PPA process would be obvious to anybody who consults the statute.

Worse, the decision as to who will manage your person is made by a stranger, albeit with the best of intentions, a judge of the Supreme Court - instead of a person you pre-select.

senior

Finally, on February 28, 2000, the provincial government brought into effect its long-awaited legislation on adult guardianship, highlighted by a new legal device known as a Representation Agreement, the stated purpose of which is:

"... to provide a mechanism to allow adults to arrange in advance how, when and by whom, decisions about their health care, personal care or financial affairs or about other matters will be made if they become incapable of making decisions independently, and to avoid the need for the court to appoint someone to help adults make decisions, or someone to make decisions for adults, when they are incapable of making decisions independently."

The BC government was so worked up about this legislation that although they passed the statute in 1993, it waited seven years before bringing it into force.

What was doubly disappointing about the delay was the fact that the legislation was intended to reduce elder abuse by allowing seniors to make their own choices in advance of their incapacity, instead of being at the mercy of the nearest relative at the time of their intellectual demise. The new tool was held back while the abuse continued.

The public agency known as the Public Guardian and Trustee of the province offered, in 2012, this description of a repreentation agreement:

"A representation agreement (RA) is a legal planning document that allows you to give someone you trust the legal authority to help you make decisions or to represent you and make decisions for you if you are incapable of making decisions independently. An RA can cover your personal and/or health care decisions. It can also cover management of your routine financial affairs. RAs are created under the Representation Agreement Act."1

Representation agreements take effect when you sign it - or you can provide that it takes effect only at a certain event (a triggering event).

Some people decide to sign a representation agreement and then give it to a third-party to only release it to the representative when it is needed.

¶15 of the Representation Agreement Act says:

  • "A representation agreement becomes effective on the date it is executed unless the agreement provides that it, or a provision of it, becomes effective later ... when an event occurs.
  • "If the representation agreement provides that it, or a provision of it, is to become effective when an event occurs, the agreement must specify how the event is to be confirmed and by whom."

Usually, a representation agreement provides that it only takes effect when a person is incapable of making decisions for themselves.

But how do you define that solemn moment?

What is the triggering event?

No two lawyers or doctors have the same answer to that but my suggested way of doing it in BC is to provide for the written certification by one or two members of the College of Physicians and Surgeons to the effect that you are no longer capable of making decisions for yourself. Thus, once those two letters come into being, the representation agreement springs to life.

The reference to the "College" is important as these are medical doctors, not spiritualists or the lady down the street who sells herbs and spices and has a masssage studio.

As will be shown by the significant decisions your representative can take once their powers come into effect, you would not want to leave this capacity decision to the local acupuncturist, chiropractor or therapist.

A representation agreement does not take away from a capable person the ability to decide things for themselves.

As stated at ¶36 of the Act:

"An adult who is capable may do anything that he or she has authorized a representative to do."

The selection of a representative is of an individual to whom you delegate decisions with respect to your person and your health. This person may be making life and death decisions in your regard. At the very least, this person will make decisions that will significantly impact your level of comfort.

No one has to accept the nomination of being someone else’s representative. In accepting, a representative has a fiduciary duty; not something that should be taken lightly. 

The law allows representation agreements that delegate a wide range of decision-making powers, from small matters only to life and death.

The powers can be split up between one or more persons and even, in the case of non-health or personal care powers, to a bank or trust company. 

One oft-forgotten feature of a representation agreement is that it may include the delegation of legal authority over financial affairs or property, as is done through a power of attorney. The two documents key to this topic are as folows:

1. The "section 7 representation agreement", is the basic or standard model. It is for the management of financial affairs, often covered in a power of attorney but the thresshold for capacity to dsign a RA may be lower than for poowers of attorney. As the provincial adlut guarduianship law is in a state of flux, the statutes should be checked rfor this distinction to see if it applies.

2. The "section 9 representation agreement" is for personal health and care decisions in which you grant to your named person authority over personal care, or you can specify what decisions can be made. Some areas of decision making given by a "section 9 representation nagreement" may include living arrangements including admission to a care facility, diet, educational or vocational activities. But it can and often goes far further in covering all personal and health care decisions and the refusal of life preserving health care in the event of, for example, a permanent unconscious condition.

Indeed, when the Representation Agreement Act became law in 2000, the government announced that it would be phasing-out powers of attorney that continued even when the donor becomes incapable (called an enduring power of attorney), forcing everybody to go out and get a representation agreement. They have since backed down on that and there is no deadline now to eliminate enduring powers of attorney

A person who signs a representation agreements in regards to themselves is known as a "donor" (preferred by lawyers) or the "adult" (the word used in the statute).

The donor gives his or her marching orders to the representative by giving the authority outright (and the representative may then decide the issue in spite of the donor's objections at the time of the decision), or by predetermining resolutions, all for the following scenarios: 

  • Personal care, clothing, diet, exercise or accommodation;
  • The physical restraint or relocation of the donor (for example, to a senior’s home);
  • Routine medical tests or dental treatment;
  • Major healthcare matters including surgery, the use of anesthetics;
  • Major diagnostic or investigative procedures, radiation therapy, intravenous chemotherapy, kidney dialysis, electroconvulsive therapy; or
  • Life support, abortion or organ donation. 

Usually, the representative also has full access to the donor's medical information.female senior

The representative must act honestly and in good faith and within the authority given to him. The representative must also consult, if practical, with the donor in terms of the donor’s wishes at the time the decision has to be made. 

Just like an executor or an estate, the representative must keep accounts and there are ways and means for a representative to be removed or to quit if need be.

According to the statute, a donor may provide in a representation agreement for an extra level of "government"; a person to provide sober second thought; to act as eyes and ears upon the representative. That person is called a monitor.

A monitor is not always required and can in some cases, create more problems that it purports to resolve. The exceptions might be the existence or emergence of family tension or where there is a substantial or widespread financial assets to manage, or in the limited situations where the statute requires it. Most often but not always, the smaller the "government", the better.

In any event, the statute tasks the Office of the Public Guardian and Trustee of British Columbia with investigatory powers in regards to allegations of fraud or improper conduct by a representative or some significant issue with the representation agreement itself.

Caveat Emtor

This article cannot possibly cover all of the aspects of a representation agreement. For example, in some cases a monitor is necessary. There are strict signing and witnessing requirements depending on a number of factors including the level of health-care decision the representative can make.

There is also considerable flexibility with respect to the triggering event or a determination of the representation agreement’s scope, all of which requires professional drafting taking into account the circumstances of the particular donor.

References and further reading: