Difference between revisions of "Representation Agreements (15:V)"

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.   

Section 7 RAs designate a substitute or supportive decision-maker to make or assist in making 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:

* renewing or refinancing, on the adult's behalf, with the same or another lender, a loan, including a mortgage, if (i) the principal does not exceed the amount outstanding on the loan at the time of the renewal or refinancing, and (ii) in the case of a mortgage, no new registration is made in the land title office respecting the renewal or refinancing;

* making payment on the adult's behalf on a loan, including a mortgage, that (i) exists at the time the representation agreement comes into effect, or (ii) is a renewal or refinancing under paragraph (h) of a loan referred to in that paragraph;

* purchasing, renewing or canceling household, motor vehicle or other insurance on the adult's behalf, other than purchasing a new life insurance policy on the adult's life;

* making, in the manner provided in the Trustee Act, any investments that a trustee is authorized to make under that Act;

* exercising any voting rights, share options or other rights or options relating to shares held by the adult;

* in relation to income tax, (i) completing and submitting the adult's returns,(ii) dealing, on the adult's behalf, with assessments, reassessments, additional assessments and all related matters, and (iii) subject to the Income Tax Act and the Income Tax Act (Canada), signing, on the adult's behalf, all documents, including consents, concerning anything referred to in subparagraphs (i) and (ii);

* doing anything that is: (i) consequential or incidental to performing an activity described in paragraphs (a) to (aa), and (ii) necessary or advisable to protect the interests and enforce the rights of the adult in relation to any matter arising out of the performance of that activity.

The creation of a s 7 RA does not require the services of a lawyer. However, 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 against the adult’s objections.  

SSection 9 RAs designate a substitute decision-maker for significant and sometimes very personal or more controversial health or personal care decisions. Under this section, representatives can do anything that the representative considers necessary in relation to the personal care or the health care of the adult, 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

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. However, careful attention should be paid to the requirements and powers given under s 7 and s 9 RAs to determine which one best suits the needs of the Adult.

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).  

Standards and Guidelines” regarding MAiD clearly prohibit consent given through ADs and RAs. The Professional Standards and Guidelines have weight in law pursuant to section 5(2) of the Medical Practitioners Regulation under the Health Professions Act.