What Is A Representation Agreement?

Representation Agreements are a legal planning document which can be used in British Columbia to give your named representative the authority to make personal, property, financial and/or health care decisions for you in particular circumstances.  As well, Living Will language can be incorporated into a Representation Agreement which will give the named representative the legal right to refuse specific medical treatment, or any treatment at all.  Prior to 2000, when the legislation was passed giving legal effect to Representation Agreements, Living Wills were not legally binding on the health care providers.

Advantages to a Representation Agreement

There are several reasons to decide to have a Representation Agreement:

1.  What happens if I do not have a Representation Agreement ?
 
Property and Financial matters -   If you do not have a Representation Agreement and you become incapable of managing your property and financial affairs then, unless you have an enduring Power of Attorney, your family or friends must apply to court to have a Committee (pronounced “comma-tee”) appointed who is empowered with the scope of authority determined by the court to make the decisions for you.  The disadvantages of a court appointed Committee are:
• the person appointed may not be your first choice;
• a court application is required and there are costs associated with that;
• in some cases the court requires the Committee be bonded; and
• there is the uncertainty of what the court will determine to be the scope of the Committee’s authority.

Personal affairs - If you become incapable of managing your personal affairs and you do not have a Representation Agreement, the court appointed Committee is again the appropriate route and this brings with it the concerns raised above.

Health care decisions –This is often the sole reason clients will wish to have a Representation Agreement, and that is because it gives you the opportunity to appoint a person of your choice to make health care decisions for you on an ongoing basis.  You can set out in what circumstances consent to treatment is to be given on your behalf by your representative and in what circumstances it is not to be given.  As well, you can specify acceptable types of treatment.  In the event you do not have a Representation Agreement and you are incapable of making health care decisions for yourself, the legislative scheme allows a health care provider to appoint a person to make those decisions for you on a temporary and one off basis.  The choice of person, known as a temporary substitute decision maker, is chosen from a statutory imposed list beginning with a spouse (including a common law spouse), then adult children, then siblings and so on.  The disadvantages to the legislative scheme in comparison to a Representation Agreement are:
• the scope of authority of the temporary substitute decision maker is very limited especially with respect to refusal of consent to medical treatment;
• you do not get to chose who will be making the decisions on your behalf.  This disadvantage cannot be overemphasized, particularly in the situation of a blended family.  One can see how easy it would be for conflict to arise where the authority to make health care decisions is granted according to the legislation without any specific direction from the individual;
• a substitute decision maker can only make certain decisions regarding health care and so a Committee will be required for personal care and property and financial decisions once any health crisis is passed; and
• the health care decisions that are made by the temporary substitute decision maker may not be the same as the choices you would make if you were able.

2. When does a Representation Agreement come into effect?

One of the most pronounced benefits of a Representation Agreement is that it can be drafted to come into effect sometime in the future on the happening of a specific event.  The most common example of this is that it can be written so that it only becomes valid if you become mentally incapacitated which we would have to prove in some way, usually by letters from two of your doctors.  This is in contrast to a Power of Attorney which is effective as to the property and financial matters of an individual upon the execution and delivery of the document.

3. Who will be your representative?

This point is discussed above but as stated cannot be overemphasized.  The Representation Agreement gives you the ability to choose who will make the decisions regarding property and financial, personal care and health matters for you when you cannot.  As well, it provides you with the flexibility to choose more than one person to act so that two or more people have to act together to make the necessary decisions.  You can also set out whether any one of your representatives can break a tie or has veto over the other(s).  As well, you can choose someone to act on one aspect but someone else to act on a different aspect.  It also allows you to choose an alternate representative in the event the person(s) you have chosen in the first instance is unable or unwilling to act at the time.  Without a Representation Agreement, the decision as to who can speak for you is in the hands of a judge and your health care provider.

4. What about a Living Will?

As stated above, the typical Living Will language can be incorporated into the Representation Agreement and have legal force and effect.

5. What about abuse of the representative’s authority?

Another advantage to a Representative Agreement and one which often provides comfort to individuals looking to plan for incapacity, is the ability to appoint a monitor whose job it is to ensure that the representative(s) is complying with his or her duties.  In the event the monitor believes there is an issue with the representative, the monitor can require the representative to produce records and to report on particular matters.  Whether or not you want a monitor will depend entirely on your individual circumstances.

6. What if I also need a Committee

In the event you choose to limit the scope of your Representation Agreement so that it does not cover your property and financial matters, and your personal care and your medical treatment, it is possible that you would still need a Committee to be appointed in the event you became incapacitated.  In such a situation, your Representation Agreement provides you with the flexibility to nominate your choice for a Committee, thus dealing with one of the largest drawbacks of a court appointed Committee, that is ensuring the Committee is an individual of your choice.

Proper Planning is Essential

Representation Agreements provide us a great deal of flexibility when it comes to planning for incapacity in the delegation of decision-making authority for personal, health and property and financial matters.  However, we strongly recommend that you seek legal advice to ensure that it is the proper tool for you in your particular circumstances.

If you have any questions with respect to Representation Agreements, or any other estate planning matter, please feel free to contact Susan Connaghan at (250) 869-1175 or connaghan@pushormitchell.com.