What is a Representation Agreement?

A Representation Agreement ("RA") is a document created under the Representation Agreement Act. The validity of an RA depends entirely on following the procedures and requirements set out in the Representation Agreement Act.

Generally speaking, an RA allows an Adult to appoint a Representative to make health care decisions on his or her behalf if the Adult is not able to make decisions independently. An Adult can also appoint a Representative under an RA to deal with routine financial matters.

Typical Situations Where Representation Agreements are Used

Most RAs are made to deal with health care matters. However, it is important to note that appointing a Representative to deal with health care matters is not always necessary. This is because the HCC Act sets out a hierarchy of "temporary substitute decision makers" for situations where a person is incapable of consenting to health care. If a person is incapacitated and unable to communicate, a temporary substitute decision maker will be chosen under the HCC Act in the following order: spouse, child, parent, brother or sister, grandparent, grandchild, anyone else related by birth or adoption, close friend, and person immediately related by marriage.

However, assuming a physician has notice of an RA, he or she will follow the instructions of the Representative and a temporary substitute decision maker under the HCC Act will not be chosen. An RA can therefore be useful in that it allows people to override the order of temporary substitute decision makers set out in the HCC Act, which may not be suitable for everyone.

RAs are also useful because they can remove the need for an expensive court application to appoint a "committee" to act on behalf of a person who loses the mental capacity to make health care decisions.

Important Changes to Representation Agreements as of September 1, 2011

Before the September 1, 2011 Amendments, the Representation Agreement Act allowed for the creation of both "Section 7" and "Section 9" RAs. While the current legislation still maintains a distinction between these two forms of RAs, the unique qualities of each have been further defined.

Under the Amendments, anyone who is 19 or older can make an RA if he or she has the necessary level of capacity. A person who is 19 or older can also be appointed as a Representative. However, anyone who is paid to provide personal or health care services to the Adult cannot be appointed as a Representative unless that person is also the Adult’s spouse, child or parent.

Like an EPoA, an RA will no longer be effective if the Representative is the Adult's spouse and the marriage or marriage-like relationship ends (unless the RA states otherwise).

The Representation Agreement Act now imposes an obligation on Representatives to keep records relating to the exercise of their authority, and this obligation will also apply to Representatives appointed before September 1, 2011.

Representation Agreements for Health Care Matters

Before the Amendments, it was possible to give a Representative appointed under a Section 9 RA the power to do anything that an Attorney could do under a PoA. This provision allowed for a Representative appointed under a Section 9 RA to deal with financial and legal matters on behalf of the Adult. However, the September 1, 2011 Amendments removed the ability to give such powers in Section 9 RAs, which now deal only with health care and personal matters.

In order to allow for a transition to the new rules, any Section 9 RA made before September 1, 2011 which gave financial or legal powers to the Representative will now be treated as an EPoA. As a result, a Representative appointed under a pre-Amendments Section 9 RA which included financial powers will now be acting as an Attorney and will have to comply with the duties imposed on Attorneys by the Power of Attorney Act. Any other pre-September 1, 2011 RAs that were validly made at that time will still be valid and enforceable.

A Section 9 RA allows an Adult to appoint a Representative to "do anything that the Representative considers necessary in relation to the personal care or health care of the Adult". In addition, if a Representative is given the power to give or refuse consent to health care on behalf of the Adult, this authority extends to giving or refusing consent to life support. However, the authority to deal with certain types of health care prescribed by the HCC Act can only be given under a Section 9 RA if the document specifically authorizes the Representative to make decisions about that treatment.

In addition, unless the RA specifically allows for it, a Representative appointed under a Section 9 RA must not "make arrangements for the temporary care and education of the Adult’s minor children, or any other persons who are cared for or supported by the Adult" or "interfere with the Adult’s religious practices".

Representation Agreements for Financial (and Limited Health Care) Matters

Prior to the Amendments, a Section 7 RA allowed a person to appoint a Representative to deal with routine financial management and limited health care matters. For the most part, this has not changed. For example, the Amendments have not changed the fact that a Representative appointed under a Section 7 RA cannot refuse life support on behalf of the Adult. However, the legislation now further limits the ability of a Representative appointed under a Section 7 RA to deal with health care matters in that he or she will not be able to "physically restrain, move or manage the Adult, or authorize another person to do these things" if the Adult objects.

The Amendments also make it clear that if an Adult has created both a Section 7 RA which provides for routine management of the Adult’s financial affairs and an EPoA, the EPoA will take priority if any conflict arises.

Some examples of what the power of "routine management of the Adult’s financial affairs" under a Section 7 RA can involve include creating an RRSP, opening bank accounts, obtaining legal services, and filing income tax returns. Examples of some powers which are not considered routine financial management and which a Representative cannot be authorized to perform under a Section 7 RA include taking out a mortgage on the Adult’s home, guaranteeing a loan, and purchasing or selling real estate.

If a Section 7 RA that deals with financial matters is created, a "monitor" must be appointed. A monitor is a person appointed in an RA who ensures that the Representative is complying with his or her duties and is not abusing any of the powers given by the Adult. A monitor will not be required if the Adult appoints as a Representative his or her spouse, the Public Guardian and Trustee, a trust company or a credit union, or if the Adult appoints two or more Representatives and they are required to act unanimously when exercising any powers given under section 7 of the Representation Agreement Act.

A Representative who is given the power to deal with the Adult's assets under a Section 7 RA must keep the Adult’s assets separate from his or her own assets. However, this obligation does not apply if the assets are owned by the Adult and the Representative as joint tenants.

Mental Capacity Requirements for Representation Agreements

While a person must have full capacity when creating a Section 9 RA, a reduced level of capacity is required for the creation of a Section 7 RA, as it gives more limited powers to the Representative. In order to make a Section 7 RA, the Adult does not need to be capable of making a contract or managing his or her affairs. However, the Representation Agreement Act states that when deciding whether the Adult has capacity to make a Section 7 RA, "all relevant factors must be considered", and provides the following examples:

• whether the Adult communicates a desire to have a Representative make, help make, or stop making decisions;
• whether the Adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;
• whether the Adult is aware that making the RA or changing or revoking any of the provisions means that the Representative may make, or stop making, decisions or choices that affect the Adult; and
• whether the Adult has a relationship with the Representative that is characterized by trust.

In order to make a Section 9 RA the Adult must have a higher level of capacity than is required for a Section 7 RA, and must be able to understand "the nature and consequences of the proposed agreement".

New Signing Procedures for Representation Agreements

The Amendments have streamlined the signing and execution process for RAs. It appears that the "certificates" contained in the Representation Agreement Regulation which previously had to be completed for both Section 7 and Section 9 RAs will now only be required for Section 7 RAs; a Representative appointed under a Section 9 RA will no longer need to sign these certificates.

If a monitor is appointed under an RA, he or she must complete a "certificate of monitor" contained in the Representation Agreement Regulation.

The Adult must sign the RA in front of two witnesses, unless the witness is a lawyer or notary, in which case only one witness is required. The Representative being appointed in the RA cannot act as a witness, nor can the Representative’s spouse, child or parent.

The Representative must sign the RA in order to exercise his or her authority.