July, 2001
Bulletin 2.3 - Representation Agreements - Information for Clients
(Representation
Agreement Act of British Columbia)
Until February, 2000, persons in British Columbia could not prepare
a legally effective Living Will. The Representation
Agreement Act was proclaimed in February 2000 and provides
all persons with the right to create an agreement which appoints a
Representative to carry out both business decision making and
health care decision making. The Representative's health care decision
making power is British Columbia's version of a "living will".
At present we recommend that an Enduring Power of Attorney
which is a simple document under the British Columbia Power
of Attorney Act be signed by all concerned clients to cover
the business aspects of their affairs in the event of their mental
infirmity. There are a number of reasons why the Power of Attorney
is preferable to a Representation Agreement for the carrying on of
the business affairs of an incapable person, not the least of which
is its simplicity and cost. Enduring Powers of Attorney signed before
Septermber 1, 2002 will remain effective. After that date no Enduring
Power of Attorney may be created.*
*Note:
New Developments have occurred - please click here to view updates!
However, the Representation Agreement, can be used to appoint a Representative
to carry out health care decision making and the following items are
intended to be a summary of considerations for you in creating a Representation
Agreement for personal and health care purposes:
1. Under a Representation Agreement, you will appoint a Representative
(or two, or alternatives) who will have decision making powers with
respect to:
a. Personal care, determining where you will live, major and minor
health care matters as defined in the Health
Care (Consent) and Care Facility (Admission) Act (see section
1 of the Act
or click for Resource
5 - Definition of "major health care" and "minor
health care") and obtaining legal services if necessary;
and
b. Optional powers which may include the right to consent,
or refuse consent, to health care against your wishes such as pulmonary
resuscitation, surgery, fibrillation, psychiatric care as well as
the right to refuse life support. Other powers can be authorized
for the Representative to physically restrain, move or manage the
person or to authorize admission to a care facility.
2. As mentioned the Representative can be granted broad powers to
conduct business and manage assets, but at present we suggest leaving
this to the Enduring Power of Attorney.
3. The agreement may appoint a Monitor whose duty is to ensure
that the Representative complies with his/her statutory duties. You
may dispense with the appointment of a Monitor.
4. The Representative must enable you to participate in decision
making and follow your wishes and if your wishes can no longer be
determined, then the Representative is to be guided by the values
and beliefs held by you during times of good mental health.
5. The Representative is not entitled to renumeration unless the
Representation Agreement expressly provides for it.
6. A number of certificates are required:
a. Your lawyer must complete a Certificate of Consultation stating
that you appear to understand the nature of the authority given
and the effect of the authority under the agreement;
b. If you do not sign the agreement in the presence of a lawyer,
you must sign the agreement in the presence of two witnesses. The
witnesses must each complete a Certificate of Witness certifying
that they are qualified to be a witness and that they have no reason
to object to the making of the Representation Agreement;
c. Each Representative must complete a certificate stating that
they understand and will comply with the duties and responsibilities
of a Representative as set out in section 16 of the Act.
d. A Monitor must complete a Certificate indicating they understand
and are able and willing to perform the duties of a Monitor and
have no reason to object to the making of the Representation Agreement.
7. The agreement may be revoked by you if you have mental capacity,
in which case notice must be given to each Representative and Monitor.
8. It is possible to make the agreement irrevocable, or revocable
only with the consent of the Representative, Monitor, doctor or combination
thereof.
9. The agreement should be stored in a fireproof and locked cabinet
- lawyer's vault or safety deposit box. The agreement may be stored
in escrow (like an Enduring Power of Attorney) until the happening
of an event - letter signed by all children, family doctor etc.
10. A letter regarding conflict of interest is necessary when a lawyer
acts for both you and the Representative(s) in providing advice regarding
the Representation Agreement, or alternatively a letter recommending
that Representative obtain independent legal advice regarding his/her
duties and obligations.
J.H. Rocke Robertson
Direct Line: +1 (604) 267-2814
E-mail: robertson@aydinco.com
