In my previous post, we discussed the use of the Power of Attorney and how they serve to protect the “stuff” of a person while they are alive. This post is about the use of a Representation Agreement to protect the “person” while they are alive. The Representation Agreement is a document that can be drafted that lays out who, the “Representative”, you would like to make personal and medical decisions and what type of decisions they can make.
Unlike the Power of Attorney, the Representation Agreement is meant to look after your mental, emotional, and physical well-being. There are two types of Representation Agreements, a Section 9 and a Section 7, and it will depend on your mental state as to which one is right for you.
Section 9 Representation Agreement
If you are in a position to sign a Will and/or Power of Attorney, this is the Representation Agreement for you. A Section 9 Representation Agreement requires a level of mental capacity similar to that of the Power of Attorney. The authority you can grant to your Representative in a Section 9 Representation Agreement ranges from where you will live, who will visit you, to minor health decisions and even end-of-life decisions. Granting someone the authority to deny life-saving treatment requires a level of appreciation and understanding that must be demonstrated by you when you sign your Section 9 Representation Agreement. It is essential to ensure that you specifically authorize your Representative to refuse or consent to life preserving measures.
Outside of the ability to grant authority to make end-of-life decisions, the Section 9 Representation Agreement has another key difference to the Section 7 Representation Agreement. The Section 9 does not allow for any financial authority. This is because the belief is that if you have the mental capacity to make a Section 9 Representation Agreement, you could also make a Power of Attorney to manage your financial decisions.
Section 7 Representations Agreement
The Section 7 Representation Agreement is a bit unique in that it serves as a bit of a stop-gap measure for those with diminishing capacity. This means, for example, someone who has been diagnosed with a form of dementia may not be able to sign a Section 9 Representation Agreement and/or a Power of Attorney but could possibly sign a Section 7 Representation Agreement.
The Section 7 Representation Agreement allows for personal and health care decision-making similar to the Section 9 but it does not allow for end-of-life decision-making. As discussed above, the Section 7 Representation Agreement does allow for certain day-to-day routine management of financial affairs.
This does not meant that your Representative can buy and sell land for you nor does it mean that they will have free-reign over your bank accounts. It does mean that they are to pay your bills, ensure any income received goes to your bank accounts, renew an existing mortgage, or paying into an RRSP for you. Because you are granting some financial authority to your Representative, a “monitor” is required to be appointed if your Representative is not your spouse or if there is only one Representative appointed. The “monitor” is meant to ensure that whoever you appoint is acting properly on your behalf.
Why Would I Need a Representative?
For many people, a Representation Agreement may never be necessary. This is because their spouse or children will step in as a “Temporary Substitute Decision-Maker” (or “TSDM”). Under BC legislation, the health care provider will first look to an appointed decision-maker, your Representative, to make a decision for you when you cannot consent to or refuse care. If your Representative is unavailable or you do not have one, there is a hierarchy in the legislation TSDM that the health care provider will go to, starting with a spouse and then to adult children and so on. If you care about who is making care decisions on your behalf and that person is not at the top or near the top of the hierarchy, then you need a Representation Agreement.
It is essential to have a Representation Agreement if you do not believe in the use of any extraordinary life-saving measures. This is to say that if you have thought or told someone that “if I am a vegetable and there is no chance I am waking up, pull the plug”, you need a Representation Agreement that specifically gives that authority to your Representative. It is also essential to have a conversation with your Representative so that they understand and appreciate your views and wishes with respect to the possible care choices to be made on your behalf.
If you are one who does not enjoy those difficult talks, you could have an Advanced Directive, or what some refer to as a “Living Will”. This document lays out in greater detail exactly what treatment you do or do not want to have should you not be able to participate in the decision-making process. Advanced Directives will be addressed in a later post as a supplemental tool for personal planning.
If you would like to discuss if a Representation Agreement is right for you, contact our office to sit-down with one of our lawyers to learn more.