Introduction

Family and friend caregivers should familiarize themselves with the legal incapacity tools available in the event a loved one loses capacity.   Readers of Network News are likely familiar with enduring powers of attorney and advanced directives, both legal incapacity planning tools which have been discussed in recent publications.  Representation agreements are another integral incapacity tool but one perhaps less familiar to readers.  This month’s article will focus on familiarizing caregivers with representation agreements and the duties and obligations of a representative should they be appointed to that position.    

What is a Representation Agreement?

Representation agreements are documents created to ensure that decisions about an adult’s personal health care are made according to the adult’s values, beliefs, and wishes.  Should an adult lose capacity to make health care decisions on their own a representation agreement gives power to a representative to legally make health care decisions on that adult’s behalf.  Representation agreements should work in conjunction and not in conflict with powers of attorney (which authorize an attorney to make financial but not health care decisions on the adult’s behalf).

There are two types of representation agreements: a standard representation agreement and a non-standard representation agreement.  Standard agreements, also known as Section 7 agreements, allow a representative to make some minor and major health care decisions for an adult.  Standard agreements do not require a high level of capacity by the adult to sign and formalize the document and are limited in what health care decisions a representative may make. 

An enhanced agreement, also known as a Section 9 agreement, give the representative more decision making power than found in a standard agreement.  A non-standard agreement gives a representative all the decision making powers set out in a standard agreement as well as the ability to make other significant and often controversial health care decisions.  Such controversial decisions include whether to refuse life supporting treatment.

Role and Duties as Representative

A representative must be over the age of 19 and willing to carry out the tasks the adult wishes them to do.  If an adult appoints more than one representative those representatives must act jointly unless otherwise indicated in the agreement.  Once appointed, the duties of a representative are set out in section 16 of the Representation Agreement Act which may be reviewed at bclaws.ca.

The fundamental duty of a representative is to carry out the expressed wishes of the adult.  If an adult is incapable of expressing their wishes, the representative must make health care decisions based on their knowledge of the adult’s values, beliefs and wishes.  It follows that representatives and adults should take the time to discuss the adult’s wishes regarding health care decisions while the adult retains capacity.    

What happens when there is no representative agreement?

A failure to create a representation agreement can cause significant hardship.  It may cause unnecessary expense to the adult, delay in having the adult’s heath care wishes recognized, and cause friction between family and friends of the adult who may not always be in agreement. 

If an adult becomes incapable and has not signed a representation agreement, some health care decisions may still be made by a temporary substitute decision maker appointed by a health care professional.  Such decision making is statutorily restricted to a 21 day period, and there are very specific classes of persons who may be appointed. The only other option (absent a representation agreement) is a court ordered legal guardian (a “committee”).  A committee, like a representative will be able to make health care decisions on behalf of the adult.  For a friend or family member to be appointed as committee, it is necessary that an application be made to the British Columbia Supreme Court.  Such an application is expensive and time consuming, especially if there are competing applications.  It is for these reasons that smart and effective incapacity planning should include the use of a representation agreement.

Conclusion

This article has briefly outlined representation agreements, the duties of representatives, and the ramifications of failing to include a representation agreement in an incapacity plan.  Given this knowledge, it may be prudent for caregivers to confirm with those to whom they are providing care that effective incapacity planning is in place.  Furthermore, caregivers should familiarize themselves of their duties and obligations of a representative should they be asked to fulfill such a position.