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{{LSLAP Manual TOC|expanded = guardianship}}
Some RAs may come into effect immediately or upon future incapabilityallow a routine financial substitute decision making. The vast majority of registered This includes all s 7 RAs, as well as some s 9 RAs come into effect immediately. The first duty of executed prior to September 1, 2011 which authorize a Representative is representative to consult and abide by make financial support arrangements as described in s 9(1)(f) of the repealed provisions of the personal wishes, values and beliefs RAA (see s 44.2 of the adultcurrent RAA). After September 1, 2011, at all timesa s 9 RA may only be made concerning personal and health care decisions.
== A= '''''1. Types of Section 7 Representation Agreements ''''' ===
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 ''''' ===
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 of the PAA). === '''''3. Note on Medical Assistance in Dying ''''' ===
The Criminal Code of Canada was amended on June 17th, 2016, to permit the Medical Assistance in Dying (MAiD) under certain conditions. This means that a medical or nurse practitioner may, at the person’s request, administer a substance to cause their death, or prescribe a substance so that the person can self-administer a substance that causes their death.
Consent given through substitute decision makers, such as Representatives representatives under the RA ActRAA, and Advanced Directives are '''NOT''' sufficient for medical practitioners to provide MAiD. MAiD can only be provided to patients who are able to give consent as of July 15th, 2016.
This is because the College of Physicians and Surgeons of British Columbia’s “Professional
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.
For more information on the Standards and Guidelines of the College of Physicians, please see their document on MAiD at: https://www.cpsbc.ca/files/pdf/PSG-Medical-Assistance-in-Dying.pdf
== '''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 representative unless that person is: *providing personal care or health care services to the adult for compensation, unless the caregiver is a child, parent, or spouse of the adult, 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.
* providing personal care or health care services to the adult for compensation, unless the caregiver is a child, parent, or spouse of the adult, 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 Representativerepresentative. According to s 5(1)(c)of the RAA, 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:
When making decisions with the adult or on behalf of the adult, the Representative representative must consult with the adult to determine his or her their current wishes, and comply with the wishes of the adult if reasonable (RAA s 16(2)).
If the current wishes of the adult cannot be determined, then the Representative representative needs to comply with the instructions or wishes the adult expressed while capable (RAA s 16(3)). A Representative 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 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 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 their beliefs and values are not known (RAA s 16(4)).
Upon application by a Representativerepresentative, the court may exempt the Representative representative from the duty to comply with the instructions or wishes the adult expressed while capable(RAA s16(5)).
Adults should encourage an adult to communicate instructions and wishes to the named Representativerepresentative(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 Representativerepresentative(s) know exactly what the adult would want.
=== '''''2. Delegation of Authority ''''' ===
A Representative representative is not permitted to delegate authority to another person (RAA s 16(6)). The exception to this is that a Representative 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 (RAA s 16(6. 1)). A Representative 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 representative must also keep accounts and records concerning the exercise of authority (RAA s 16(8)). These accounts and records must be produced upon request of the adult, the appointed monitor, or the Public Guardian and TrusteePGT. A Representative representative who has been appointed to make financial decisions must keep the adult’s assets separate from their own (RAA s 16(9)). An exception to this exists where the assets are owned by the adult and the Representative representative as joint tenants or have been substituted for, or derived from, assets owned by the adult and the Representativerepresentative(s) as joint tenants.
=== '''''4. Access to Information ''''' ===
A Representative 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 (RAA s 18).
A Representative representative also has a duty to keep information confidential. A Representative 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 TrusteePGT, or to make an application to or to comply with an order of the court (RAA s 22).
=== '''''5. Creating a Will ''''' ===
A Representative representative must not make or change a Will will for the adult for whom the Representative representative is acting, and any change to a Will will that is made for an adult by his or her Representative their representative has no force or effect (RAA s 19. 101).
=== '''''6. Remuneration and Expenses ''''' ===
A Representative representative (or an alternative Representative 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 (RAA 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 HCCFA (RAA s 26(1. 1)).
A Representativerepresentative, alternative Representativerepresentative, 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 representative appointed under an RA is carrying out his or her their duties. The monitor acts as a 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 (RAA 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)). :
=== '''''2. Duties and Powers''''' ===
The monitor’s duties and powers are outlined in s 20 of the RAA. The monitor must:
* Make reasonable efforts to ensure that the representative is fulfilling their duties (these duties are set out in s 16 of the RAA)
* 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 their 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 (RAA s 20(4)). The monitor has a right to visit and speak with the adult at any reasonable time (RAA s 20(2)) and any person with custody or control of the adult is prohibited from hindering the monitor’s access to the adult (RAA 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 PGT to make a complaint (RAA s 20(5)). === '''''3. Payment and Expenses''''' ===
The adult who executes the Representation Agreement (RA) must have mental capacity. For guidance on mental capacityalso be in writing, refer to [[Introduction to Adult Guardianship signed and witnessed (15:IRAA s 13)#4. Representation Agreement The adult and each of the representative(s) must sign the RA(RAA s 13(2)) | section II.B Two adults must witness the signatures.3: Mental Capacity — Representation Agreement]] However, only one witness is necessary if that witness is a lawyer and member in good standing with the Law Society of BC or is a member in this chaptergood standing of the Society of Notaries Public.
Each Representative representative and each witness for a s 7 RA must also complete a certificate in the prescribed form. (RAA s 13(1.1) and s 13(6)). Please consult Nidus Personal Planning Resource Centre for more information about prescribed forms.
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).
For more information on preparing documents, consult the '''Appendix''' or organisations such as Nidus Personal Planning Resource Centre and Registry. Contact information may be found in section '''[[Governing Legislation and Resources for Adult Guardianship (15:II)#C. Resource Organizations | section II.CD: Resource OrganisationsOrganizations]] ''' of this chapter.
Although there is no legal requirement to register an RA, registration may be done through the Nidus Personal Planning e-Registry. When a person registers, he or she they can decide which organizations can access his or her their record. For more information contact Nidus Personal Planning Resource Centre.
== '''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) (RAA s 27(1)). The adult must provide written notice to the Representativerepresentative(s), alternative Representativerepresentative(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(RAA s 27(3. 1))
An RA terminates ends 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 there is no representative previously appointed and an adult no longer has capacity, various provincial laws apply. The statutory framework of the HCCFA allows for the appointment of a temporary substitute decision-maker (TSDM). === '''''1. Temporary Substitute Decision-makers (TSDM) ''''' ===
In BC, a health care provider is legally required to get consent prior to treating a patient.
The default list provided in s HCCFA outlines the specific procedures that health care providers must follow to obtain legally valid consent. Section 16 (1) of the HCCFA is sets out the “default list,” which health care providers must follow (in hierarchical order) to determine the appropriate person to act as follows:a TSDM.
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 s 16 of the HCCFA: * The adult's spouse or partner* The adult's child who is over 19* The adult's parent* The adult's sibling* 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 under s 16(subsection 2)of the HCCFA: *be Be at least 19 years of age;*have Have been in contact with the adult during the preceding 12 months;*have Have no disputes with the adult;*be Be capable of giving, refusing or revoking substitute consent, and*be 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 committee or a Representativerepresentative.
Part 3 of the HCCFA will come into force on November 4, 2019. This part describes consent requirements for admission of adults into care facilities. If an adult is incapable of providing consent for admission into a care facility, a manager of the facility may admit an adult to the facility if consent is provided by a committee of person. If an adult does not have a committee of person, a substitute will be chosen from the following list, in this order, to give or refuse consent: * The adult’s representative, if they have authority to give consent to admission * The adult’s spouse* The adult’s child* The adult’s parent* The adult’s sibling* The adult’s grandparent* Anybody related by birth* A close friend* A person immediately related to the family by marriage If no person meets these requirements, or if there is a dispute over who is chosen, the manager of the facility must notify the PGT. The PGT can authorize a person to give or refuse consent, including one of their staff. In providing consent, the substitute decision maker must consider: * The adult’s current wishes* The adults previously expressed wishes and known beliefs and values* Whether the adult would benefit from admission* What other options may be available and appropriate or less restrictive to support the adult’s care == '''I. A Practical Approach to Note on 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:
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 of 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://canliiconnects.org/en/summaries/33208.
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