Representation Agreements (15:V)

The RAA has a significant historical connection to the developmental disability community. A primary reform goal was to give legal recognition to substitute decision-makers, and status for informal helpers to adults that are family and friends. Another primary change was a shift of focus toward support for capacity rather than assessments of incapacity, as the latter can take away an individual’s personal autonomy.

Refer to Representation Agreements and Supported Decision Making

Representation Agreements (RA) are governed by the RAA. RAs are an instrument by which an individual can proactively plan for the possibility of future incapacity, by appointing another person to make decisions on their behalf. RAs are the primary method by which adults in BC can plan for future health care substitute decision making. An RA can also be used to give legal authority to a person’s supportive decision-maker—a person appointed under the RA to help the adult make their decisions, not necessarily to make their decisions for them. As the capacity test for creating an RA is lower than the test for creating a POA, a person with limited cognitive capacity may have the capacity to create an RA.

Some RAs allow a routine financial substitute decision making. This includes all s 7 RAs, as well as some s 9 RAs executed prior to September 1, 2011 which authorize a representative to make financial support arrangements as described in s 9(1)(f) of the repealed provisions of the RAA (see s 44.2 of the current RAA). After September 1, 2011, a s 9 RA may only be made concerning personal and health care decisions.

In the BC health care system, health care providers must speak directly to an individual in order to inform them about health care choices and consequences. An adult with capacity has the right to give or refuse consent for treatments. Due to illness, accident or disability, an individual needing health care may not be capable of understanding advice, making informed decisions, or providing meaningful consent to proposed treatment. If the adult has previously enacted an RA, then the Representative(s) will be able to give or refuse consent on behalf of the capable adult, acting as appointed substitute decision-maker(s) to make decisions according to the incapable adult’s personal wishes, values and beliefs.

An individual making an RA may be in a vulnerable position due to family dynamics, cognitive challenges, discriminatory beliefs about people with disabilities, or other factors. Vulnerability may create more opportunities or potential for abuse. Students must be aware of indicators of abuse and follow procedures that will help them to notice abuse. If possible, the student should meet the client alone and ensure that the client truly wishes to create an RA and give powers to the potential representative. The student must ensure that the client understands and appreciates the meaning of the RA and its effects. Students should take detailed notes of the client interview, and should consider multiple meetings with the client to ensure that the client understands and appreciates the process and the document.

Students should refer to their Supervising Lawyer if there is any doubt that the client understands and appreciates the RA. Also note that, according to s 3.1 of the amended RAA, an adult must not be required to have an RA as a condition of receiving any good or service.

RAs may come into effect immediately or upon future incapability. The vast majority of registered RAs come into effect immediately. Students should be aware that the first duty of a Representative is to consult and abide by the personal wishes, values and beliefs of the adult, at all times.

A. Types of Representation Agreements

Under the current RAA, there are two levels of RAs that an adult can choose to create, named for the section which governs them: s 7 RAs and s 9 RAs. Both types of RAs allow the adult to select any or all areas of decision-making created by the statutory section in which he or she will authorize the Representative to act on his or her behalf.

1. Section 7 Representation Agreements

Section 7 RAs designate a substitute or supportive decision-maker to make personal care decisions, major and minor health care decisions for the adult, and routine legal and financial decisions.

These health care decisions cover the majority of health and personal care related choices that an individual can make over the course of their life. The list of decisions includes decisions regarding:

• personal care, including where and with whom the adult is to reside;
• consent to treatment;
• medication;
• minor OR major surgery;
• diagnostics and tests;
• palliative care; and
• living arrangements of the adult.

A s 7 RA may also allow the Representative to take care of routine financial affairs of the adult, including:

• paying bills;
• receiving and depositing a pension and other income;
• purchasing food and other services necessary for personal care; and
• making investments.

See RA Act Regulation 2(1) for full list of what constitutes routine financial affairs. This section of the regulation is repeated at Appendix H. The concept of routine management of the adult’s financial affairs excludes, for example (s 2(2), RA Reg):

• (a) using or renewing the adult's credit card or line of credit or obtaining a credit card or line of credit for the adult;
• (b) subject to subsection (1) (h), instituting on the adult's behalf a new loan, including a mortgage;
• (c) purchasing or disposing of real property on the adult's behalf;
• (d) on the adult's behalf, guaranteeing a loan, posting security or indemnifying a third party;
• (e) lending the adult's personal property or, subject to subsection (1) (v), disposing of it by gift;
• (f) on the adult's behalf, revoking or amending a beneficiary designation or, subject to subsection (1) (r), creating a new beneficiary designation;
• (g) acting, on the adult's behalf, as director or officer of a company.

The creation of a s 7 RA does not require the services of a lawyer. LSLAP is able to draft s 7 RAs for clients, as can a notary. However, students must be aware that a s 7 RA for the adult does not permit a Representative to make health care and personal decisions that involve decisions to refuse health care necessary to preserve life, or to physically restrain, move or manage the adult.

If there is a conflict between an enduring POA and a s 7 RA which includes routine management of financial affairs, the enduring POA will take priority.

2. Section 9 Representation Agreements

Section 9 RAs designate a substitute decision-maker for significant and sometimes very personal or more controversial health or personal care decisions, including:

• where the adult is to live and with whom, including whether the adult should live in a care facility;
• whether the adult should work and, if so, the type of work, the employer, and any related matters;
• whether the adult should participate in any educational, social, vocational or other activity;
• whether the adult should have contact or associate with another person;
• whether the adult should apply for any licence, permit, approval or other authorization required by law for the performance of an activity; *day-to-day decisions on behalf of the adult, including decisions about the diet or dress of the adult;
• giving or refusing consent to health care for the adult, including giving or refusing consent in the circumstances specified in the RA to specific kinds of health care, even where the adult refuses to give consent at the time the health care is provided; and
• physically restraining, moving and managing the adult and authorizing another person to do these things, if necessary to provide personal care or health care to the adult

Students should be aware that a representative under s 9 RA must not do the following, unless expressly provided for in the RA:

• give or refuse treatment in accordance with s 34(2)(f) of the HCCFA.
• make arrangements for the temporary care and education of the adult’s minor children, or any other person who is cared for or supported by the adult; or
• interfere with the adult’s religious practices.

S 34(2)(f) pertains to refusing substitute consent to health care necessary to preserve life (s 18, HCCFA.) In a s 9 RA, if a Representative is provided the power to give or refuse consent to health care for the adult, then the Representative may give or refuse consent to health care necessary to preserve life (s 9(3), RAA). Some other health decisions are also excluded from potential powers, e.g. “sterilization for non-therapeutic purposes” (s 11(2), RAA).

The creation of a s 9 RA no longer requires the services of a lawyer. LSLAP is able to draft s 9 RAs for clients. However, refer to your Supervising lawyer to clarify the appropriate scope and purpose of the RA: which type of RA appropriately meets the needs of the client?

Prior to September 2011, a s 9 RA could include broad financial powers, equivalent to those given in a POA. The new PAA says this broad authority in an RA is now treated as if it were an enduring POA, and the Representative must follow the requirements under the PAA to use these powers (s 44.2 Transitional Provision).

B. Who Can Be a Representative?

Section 5(1)(a) of the RAA specifies that an individual who is 19 years of age or older can be appointed as Representative unless that person is:

• providing personal care or health care services to the adult for compensation, unless the caregiver is a spouse, adult child, parent, grandparent, an adult brother or sister or any other adult relation by birth or adoption; or
• working as an employee of a facility in which the adult resides and through which the adult receives personal care or health care services.

The Public Guardian and Trustee can also be named as a Representative. According to s 5(1)(c), a credit union or trust company can only have authority to make (limited) financial decisions listed in a s 7 RA. A credit union or trust company cannot make decisions regarding health care or personal care.

Under s 5(2) of the RAA, an adult can also name more than one Representative either:

• a) over different areas of authority; and/or
• b) over the same area of authority, in which case, the Representatives must be unanimous in exercising their authority.

Section 5(4) requires that all Representatives for RAs made under section 7 complete a certificate in the prescribed form (see Appendix I).

C. Acting as a Representative

The law defines several duties that Representatives owe to the adult. There are several statutory parameters with respect to what a Representative must do (e.g. consult with the adult) and what a Representative must not do (e.g. make a will). Below is an outline of the legal “do’s and don’ts” that a Representative must follow.

1. Duties

Under s 16(1) o the RAA, a Representative must:

• act honestly and in good faith;
• exercise the care, diligence and skill of a reasonably prudent person; and
• act within the authority given in the RA.

When making decisions with the adult or on behalf of the adult, the Representative must consult with the adult to determine his or her current wishes, and comply with the wishes of the adult if reasonable (s 16(2)).

If the current wishes of the adult cannot be determined, then the Representative needs to comply with the instructions or wishes the adult expressed while capable (s 16(3)). A Representative cannot make decisions based on their own opinion, but must represent the adult’s own wishes to health care providers and others. In other words, a Representative must “stand in the shoes” of the adult and base health care decisions on what the adult would want.

If the adult’s instructions or wishes are not known, the Representative must act on the basis of the adult’s known beliefs and values, or in the adult’s best interests, if his or her belief and values are not known (s 16(4)).

Upon application by a Representative, the court may exempt the Representative from the duty to comply with the instructions or wishes the adult expressed while capable.

Students should encourage an adult to communicate instructions and wishes to the named Representative(s). This should be done in writing (including by e-mail or recorded transmission), but can also be done orally, for as long as the adult has capacity. It is best that the Representative(s) know exactly what the adult would want.

2. Delegation of Authority

A Representative is not permitted to delegate authority to another person (s 16(6)). The exception to this is that a Representative who has been appointed to make financial investments on behalf of an adult may delegate authority to qualified investment specialist, including a mutual fund manager (s 16(6.1)). A Representative may also retain the services of a qualified person to assist in carrying out the adult’s instructions or wishes.

3. Accounts and Records

A Representative must also keep accounts and records concerning the exercise of authority s 16(8). These accounts and records must be produced upon request of the adult, the appointed monitor, or the Public Guardian and Trustee. A Representative who has been appointed to make financial decisions must keep the adult’s assets separate from their own (s 16(9)). An exception to this exists where the assets are owned by the adult and the Representative as joint tenants or have been substituted for, or derived from, assets owned by the adult and the Representative(s) as joint tenants.

4. Access to Information

A Representative may request information and records respecting the adult, if the requested information or records relate to the incapacity of the adult or an area of authority granted under the RA (s 18).

A Representative also has a duty to keep information confidential. A Representative must not disclose information or records, except where it is necessary to perform the duties owed to the adult, for the purposes of an investigation by the Public Guardian and Trustee, or to make an application to or to comply with an order of the court (s 22).

5. Creating a Will

A Representative must not make or change a Will for the adult for whom the Representative is acting, and any change to a Will that is made for an adult by his or her Representative has no force or effect (s 19.1).

6. Remuneration and Expenses

A Representative (or an alternative Representative or monitor) is not entitled to be paid for acting on behalf of the adult, unless the RA expressly sets out and authorizes the amount or rate of remuneration, or upon application by a representative, the court authorizes the remuneration (s 26(1)). In addition, an RA cannot authorize a representative to be paid for making any decision under Part 2 of the Health Care (Consent) and Care Facility (Admission) Act (s 26(1.1)).

A Representative, alternative Representative, or monitor is also entitled to reimbursement for reasonable expenses incurred in the course of performing the duties or exercising the powers. Accounts and records of the reasonable expenses paid must be kept.

D. Monitors

The role of the monitor is to ensure that the Representative appointed under an RA is carrying out his or her duties. The monitor acts as an extra safeguard and support to ensure that the RA is working for the adult.

1. Appointment and Resignation

An adult may appoint a monitor to oversee their chosen representative who is acting under a s 7 or s 9 RA (s 12(3)). The monitor can be appointed to oversee personal, health care and financial decisions.

If an adult has a s 7 RA which authorizes their representative to make routine financial decisions, the adult MUST appoint a monitor to oversee their chosen representative unless the representative is the adult’s spouse, the Public Guardian and Trustee, a trust company or a credit union OR the adult has appointed two representatives who must act unanimously (s 12(1)). Failure to comply with this requirement will make the provision of the RA authorizing the Representative to make routine financial decisions invalid (s 12(2)).

A monitor must be 19 years or older and must be willing and able to perform the duties and to exercise the powers of a monitor (s 12(4)). An individual named in a representation agreement as a monitor must complete a Monitor's Certificate – see Appendix J for precedent of Monitor’s Certificate.

A monitor may resign by giving written notice to the adult, each representative and any alternate representatives. The resignation will be effective upon giving notice or at a later date specified in the written notice (s 12(6)). See section 12 of the RAA for general provisions regarding the appointment and resignation of a monitor.

2. Duties and Powers

The monitor’s duties and powers are outlined in Section 20 of the RAA. The monitor must:

• make reasonable efforts to ensure that the representative is fulfilling his or her duties (these duties are set out in s 16) (s 20(1));
• act honestly and in good faith and use the care, attention and skill of a responsible person.

However, a monitor cannot make decisions on behalf of the adult.

If the monitor is concerned that the representative is not fulfilling his or her duties, the monitor must raise their concern with the representative(s) and the adult and try to solve the problem through discussion and communication. The monitor may require the representative to report to them or produce accounts (s 20(4)). The monitor has a right to visit and speak with the adult at any reasonable time (s 20(2)) and any person with custody or control of the adult is prohibited from hindering the monitor’s access to the adult (s 20(3)). If, after checking and discussion, the monitor believes that the representative is not following their duties or is abusing the adult in any way, the monitor is legally required to contact the Public Guardian and Trustee to make a complaint (s 20(5)).

3. Payment and Expenses

The monitor can be reimbursed for expenses incurred in carrying out their duties (s 26(2)), but can only be paid a fee if provided for in the RA and authorized by the BC Supreme Court (s 26(1)). Alternatively, if the Public Guardian and Trustee appoints a replacement monitor, the Public Guardian and Trustee may authorize payment of a fee (s 21(3)).

4. Replacement Monitor

The Public Guardian and Trustee may appoint a replacement monitor at the request of the representative or other interested person if the initial monitor is unsuitable, no longer able to act or has ceased acting and the adult is no longer capable of making a new RA (s 21(1)).

E. Creating a Representation Agreement

The adult who executes the Representation Agreement (RA) must have mental capacity. For guidance on mental capacity, refer to section II.B.3: Mental Capacity — Representation Agreement in this chapter.

The RA must also be in writing, signed and witnessed (s 13). The adult and each of the Representative(s) must sign the RA (s 13(2)). Two adults must witness the signatures, unless it is being witnessed by a lawyer or notary.

Witnesses cannot be (s 13(5)):

• one of the Representatives;
• an alternate Representative;
• a spouse, child, or parent of anyone named in the RA as a Representative or alternate Representative;
• an employee or agent of a Representative or alternate Representative;
• anyone under 19 years of age; or
• anyone who does not understand the type of communication used by the adult who wishes to be represented.

Each Representative and each witness for a s 7 RA must also complete a certificate (s 13(6)). See Appendix I: Certificate of Representative or Alternative Representative and Appendix L: Certificate of Witness.

An RA becomes effective on the day it is executed, unless the RA specifies that it is to become effective at some later time based upon a triggering event (e.g. loss of capacity). According to s 15 of the RAA, the RA must specify how a triggering event is to be confirmed and by whom (e.g. loss of capacity confirmed by two medical professionals).

Although there is no legal requirement to register an RA, registration may be done through the Nidus e-Registry. When a person registers, he or she can decide which organizations can access his or her record. For more information contact Nidus Personal Planning Centre online at http://www.nidus.ca or by telephone at (604) 408-7414.

F. Changing, Revoking or Ending a Representation Agreement

An RA can be changed or revoked by the adult at any time (as long as the adult has mental capacity). The adult must provide written notice to the Representative(s), alternative Representative(s) and the monitor. The change or revocation is effective either when written notice is given to each of these persons, or on a later date specified in the written notice.

An RA terminates where:

• the adult who made the agreement revokes the RA;
• the adult who made the agreement or the Representative dies;
• the court issues an order that cancels the RA;
• the Representative becomes incapable or resigns; or
• as provided for under s 19 of the PPA.

Where the adult who made the agreement and the Representatives are spouses, then an RA will normally end when the marriage or marriage-like relationship ends. However, if the RA explicitly says that the RA will continue to be in effect after the end of the marriage or marriage-like relationship, then the RA will continue.

G. Other Jurisdictions

As of September 1, 2011, RAs from other jurisdictions may be accepted in BC Subject to any further limitations or conditions set out in the regulations, the criteria for accepting an extra-jurisdictional RA is that it must (s 41):

• perform the function of an RA
• be made in a jurisdiction outside BC; and
• comply with any prescribed requirements.

The certificate in the prescribed form, which requires completion by the extra-jurisdictional solicitor, can be found in Schedule 1 of the RA Regulations, Form 5 (See Appendix M).

NOTE: These recognition rules only apply to RA9s for personal and health care decisions. See section 9 of the Representation Agreement Regulations.

H. No Capacity and No RA

Where there is no Representative previously appointed and an adult no longer has capacity, various provincial laws apply. The statutory framework allows for the appointment of a temporary substitute decision-maker (HCCFA). Designated Agencies must investigate allegations of abuse or neglect and provide necessary support and assistance [AGA]. The statutory framework grants investigatory and decision-making power to the Public Guardian and Trustee (PGTA). Below is an outline of the legal parameters for each of these processes.

1. Temporary Substitute Decision-makers (TSDM)

In BC, a health care provider is legally required to get consent prior to treating a patient.

• A capable adult can give or refuse consent to health care treatment.
• Consent to health care may be expressed orally or in writing or be inferred from conduct (s 9(1) HCCFA). Where a patient is incapable (i.e. due to illness, loss of consciousness or injury), health care providers are required to get consent from a substitute decision-maker. However, there is an exception when urgent or emergency health care is required (s 12HCCFA).
• If the patient has a Representation Agreement (RA) in place, then the instructions for consent will need to be obtained from the Representative (see s 19.3 HCCFA).
• If the patient has an Advance Directive (AD) in place, then consent may be given in the AD (s 19.7 HCCFA).
• If no Representative and no Committee are in place, then the health care provider will need to find a temporary, substitute decision-maker (TSDM) to give or refuse consent (s 19.8 HCCFA).

The HCCFA outlines the specific procedures that health care providers must follow to obtain legally valid consent. Section 16 of the HCCFA sets out the “default list,” which health care providers must follow (in hierarchical order) to determine the appropriate person to act as a TSDM.

The default list provided in s 16 of the HCCFA is as follows:

To obtain substitute consent to provide major or minor health care to an adult, a health care provider must choose the first, in listed order, of the following who is available and qualifies under subsection (2) (subsection 1):

• the adult's spouse or partner;
• the adult's child who is over 19;
• the adult's parent;
• the adult's brother or sister;
• the adult’s grandparent;
• the adult’s grandchild;
• other relatives by birth or adoption (but not in-laws or step-children);
• close friend;
• persons immediately related by marriage (including in-laws and step-children).

To qualify to give, refuse or revoke substitute consent to health care for an adult, a person must (subsection 2):

• be at least 19 years of age;
• have been in contact with the adult during the preceding 12 months;
• have no disputes with the adult;
• be capable of giving, refusing or revoking substitute consent, and
• be willing to comply with the duties in section 19.

If no one listed in subsection (1) is available or qualifies under subsection (2), or if there is a dispute about who is to be chosen, the health care provider must choose a person authorized by the Public Guardian and Trustee (which can include a person employed in the Office of the Public Guardian and Trustee).

The TSDM must act in accordance with the adult patient’s wishes, values and beliefs, when the patient is unable to provide their own consent, and does not have an appointed Committee or a Representative.

I. A Practical Approach to RAs for LSLAP Students

When a client approaches LSLAP for assistance with creating an RA, students should ask the following questions in order to ascertain the kind of RA that the client needs and whether LSLAP can assist them:

1. Is the client capable of creating an RA? The presumption is that all adults are capable. The test for capacity depends on whether it is a s 7 or s 9 agreement at issue.
2. Why does the client want to create an RA?
3. Who is the client considering to be their Representative?
4. What is the relationship between the client and their chosen Representative?
5. Are there signs of abuse, neglect or self-neglect? Does the adult have access to community resources? Is there a need to involve a Designated Agency?
6. Which specific authorities would the client like their Representative to have?
7. Have they spoken to their chosen Representative to see if they are willing to serve?
8. What is the status of the client’s will? Explain that wills do not provide direction or authority if testators become incapable, and POAs/RAs do not function like wills.
9. Would the client like to appoint a substitute or supportive decision-maker?

Students should refer to their Supervising Lawyer if there is any doubt that the client understands and appreciates the RA. Also note that, according to s 3.1 of the amended RAA, an adult must not be required to have an RA as a condition of receiving any good or service.

If there are concerns that a person may be abused or neglected, or at risk of being abused or neglected, the student should discuss these concerns with the client and provide information and access to appropriate support services (e.g., Seniors Help & Information Line at: 604-437-1940 or 1-866-437-1940).

Students also need to remember their legal responsibility to maintain professional conduct and client confidentiality. If abuse or neglect is suspected, consult with the Supervising lawyer about how to make a report to the appropriate authority. Refer to sections I.C: Resource Organizations and VIII: Abuse and Neglect in this chapter.

J. The Bentley (Litigation guardian) v. Maplewood Seniors Care Society Case

An important case for both Representation Agreements and Advance Directives is Bentley (Litigation guardian) v. Maplewood Seniors Care Society, 2014 BCSC 165. The case highlights issues of consent, the ability for an adult to change their consent from written instructions, and the meaning of health care verses personal care. A discussion of the case is available by case brief through CLE online: http://online.cle.bc.ca//digests/browse.aspx?cle=55084&sub=5.

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