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1, 2011 which authorize a representative to make financial support arrangements as described in s 9(1)(f) of the repealed provisions of the RAA (see s 44.2 of the current RAA).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.