Representation Agreement vs Enduring Power of Attorney in BC

A Representation Agreement covers personal care and health care decisions (with optional routine day-to-day finances), whereas an Enduring Power of Attorney governs business, property, and financial affairs without conferring any authority over medical care. In British Columbia, these two distinct instruments are designed to work together rather than substitute for one another. Choosing the wrong document leaves critical areas of an adult’s life unprotected if incapacity occurs.

Core Difference: Representation Agreement vs Enduring Power of Attorney

Planning for adult incapacity in British Columbia requires precision regarding statutory authority. The regime divides personal autonomy into distinct jurisdictions: physical welfare and property administration. The primary statutes governing these instruments are the Representation Agreement Act [RAA] and the Power of Attorney Act [POAA].

When an adult loses capacity without these planning instruments in place, provincial default systems activate under the Health Care (Consent) and Care Facility (Admission) Act [HCCFA] for medical matters, or the Adult Guardianship Act [AGA] and the Patients Property Act [PPA] for estate matters. Appointing trusted representatives beforehand ensures personal intentions govern instead of statutory defaults.

Comparative Authority Matrix

The operational divide between a Representation Agreement and an Enduring Power of Attorney involves clear boundaries, as set out in provincial legislation:

Scope of Authority Under BC Law

Representation Agreements: Section 7 vs Section 9

Under Section 7(1) of the RAA, an adult may authorize a representative to assist in or make decisions regarding personal care, minor and major health care, legal services (excluding divorce proceedings), and the routine management of financial affairs. The Representation Agreement Regulation [RAR] details permissible routine tasks, such as bill payments, pension deposits, daily necessity purchases, and basic investments. Crucially, Section 2(2) of the RAR explicitly excludes significant financial dealings:

• Obtaining, using, or renewing credit cards or lines of credit;
• Instituting a new loan or mortgage;
• Purchasing or disposing of real property;
• Guaranteeing loans, posting security, or indemnifying third parties;
• Lending the adult’s personal property or disposing of it by gift;
• Revoking, amending, or creating beneficiary designations;
• Acting as a corporate director or officer.

For extensive personal care and medical authority, adults turn to Section 9 of the RAA. Under Section 9(1), an agreement may authorize the representative to make any decision the representative considers necessary, including refusing consent to life-prolonging medical treatments or physically restraining and managing the adult when necessary to administer care. However, Section 9 agreements cannot authorize non-therapeutic sterilization, nor can they authorize refusal of psychiatric treatment or admission covered by designated mental health legislation.

Enduring Power of Attorney Scope

Under Section 10 of the POAA, an Enduring Power of Attorney grants an appointed attorney authority over the adult’s financial affairs, defined as “business and property, and the conduct of the adult’s legal affairs.” It operates while the adult is capable, comes into effect when the adult becomes incapable, and endures through incapacity.

While broad regarding commercial and asset management, the attorney has no authority over personal or medical decisions. Furthermore, Section 21 of the POAA explicitly provides that an attorney cannot make or alter a will on behalf of the adult, declaring any such attempt void.

Legal Capacity Requirements

The legal tests required to execute these two instruments differ significantly under BC law.

Capacity for a Section 7 Representation Agreement

Section 8(1) of the RAA establishes an accessible threshold: an adult may execute a Section 7 agreement even if they are legally incapable of entering into a contract, managing their health care, or handling their own daily financial affairs. Section 8(2) mandates that assessment consider all relevant factors, including whether the adult communicates a desire to have a representative, demonstrates choices and preferences, understands that the representative makes impactful decisions, and shares a relationship characterized by trust.

Conversely, executing a Section 9 agreement requires that the adult understands the nature and consequences of the document at the time of execution, pursuant to Section 10 of the RAA.

Capacity for an Enduring Power of Attorney

Section 12 of the POAA establishes a detailed cognitive test. An adult is incapable of executing an Enduring Power of Attorney if they cannot understand all of the following:

1. The property the adult holds and its approximate value;
2. The obligations owed to dependants;
3. That the attorney will be empowered to do anything regarding financial affairs that the adult could do, except make a will;
4. That prudent management is required to prevent the value of the assets from declining;
5. That the attorney might misuse their authority;
6. That the adult retains the right to revoke the instrument while capable;
7. Any other prescribed matters under the regulation.

Execution, Witnessing, and Remote Signing Formalities

Both instruments require strict execution formalities to ensure validity:

• Representation Agreement: Must be in writing. Section 13 of the RAA mandates two witnesses, unless the sole witness is a practising lawyer or an active member of the Society of Notaries Public of British Columbia. Representatives must sign acceptance forms before exercising authority.
• Enduring Power of Attorney: Under Sections 16 and 17 of the POAA, the adult and the attorney must sign the document. Execution requires two witnesses, or one qualified lawyer or notary public. Attorneys must sign before exercising authority.
• Disqualified Witnesses: Both statutes disqualify named representatives, attorneys, and their immediate family members from acting as witnesses.
• Electronic Signing: The RAR (s 3.2) and the Power of Attorney Regulation [POAR] (s 2.1) allow remote electronic execution using audio-visual communication, provided the witness is a qualified lawyer or BC notary public and statutory procedural conditions are met.

Statutory Duties, Accountability, and Gifts

Representatives and attorneys bear serious fiduciary duties under British Columbia statutes.

Under Section 16 of the RAA, a representative must act honestly and in good faith, remain within their authorized powers, and consult with the adult to determine current wishes, following them if reasonable. When Section 7 financial powers are granted, Section 12 mandates the appointment of an independent monitor to review records, unless the representative is a spouse or two representatives are appointed to act unanimously.

Under Section 19 of the POAA, an attorney must act honestly, in good faith, exercise the care of a prudent person, maintain detailed records, and keep the adult’s assets separate from their own. Decision-making must prioritize the adult’s best interests, taking into account the adult’s beliefs, values, and expressed wishes.

Attorneys face statutory limits on gifting. Under Section 20 of the POAA and Section 3 of the POAR, an attorney may make a gift, charitable donation, or loan from the adult’s assets only if the agreement expressly permits it, or if:

• Sufficient property remains to meet the care needs of the adult and dependants;
• The adult made similar gifts or loans while capable; and
• The annual aggregate value does not exceed the lesser of $5,000 or 10% of the adult’s taxable income for the previous year.

Interaction with Advance Directives and Substitute Decision-Makers

Health care consent under BC law is anchored in Section 4 of the HCCFA, protecting an adult’s absolute right to give or refuse medical consent on any grounds, including life-sustaining treatment, while capable.

When an adult becomes incapable, Section 11 of the HCCFA turns to a representative holding valid authority under a Representation Agreement. If no representative exists, Section 14 activates the Temporary Substitute Decision Maker (TSDM) system, following the priority list set out in Section 16 (spouses, adult children, parents, siblings, and other relatives). An attorney under an Enduring Power of Attorney has no standing to make health care decisions in this framework.

Where both an Advance Directive and a Representation Agreement exist, Section 19.3 of the HCCFA governs: the instructions within the Advance Directive operate as the adult’s stated wishes under Section 16 of the RAA, and the representative retains decision-making authority unless the agreement explicitly directs health care providers to act on the directive without representative consent.

Court Oversight, Statutory Guardianship, and Real Property

The statutory landscape includes overlapping oversight and property mechanisms:

Statutory Property Guardianship and AGA

Under Section 3 of the AGA, an adult is presumed capable of making personal and financial decisions until proven otherwise. A certificate of incapability resulting in statutory property guardianship under Section 32 of the AGA cannot be issued unless the adult requires assistance, alternative means are insufficient, and either the adult has not executed a complete Enduring Power of Attorney, or the attorney is actively failing to comply with their statutory duties.

Patients Property Act and Committee Appointments

Under Section 19 of the PPA, if a court declares an adult a “patient” and appoints a committee of the person or estate, any existing Power of Attorney terminates immediately. Similarly, every Representation Agreement terminates unless the court orders otherwise. Under Section 19.1 of the PPA, statutory property guardianship pathways temporarily suspend financial provisions until the Public Guardian and Trustee reviews and determines the status of the authority.

Public Guardian and Trustee (PGTA)

Under Sections 17 to 19 of the Public Guardian and Trustee Act [PGTA], the Public Guardian and Trustee maintains statutory authority to investigate concerns, inspect financial records, and take emergency protective actions if an attorney or representative breaches their fiduciary obligations.

Real Property Registrations (Land Title Act)

Where an attorney intends to execute documents transferring, encumbering, or selling real estate, Section 51 of the Land Title Act [LTA] requires filing the original Enduring Power of Attorney or a certified copy with the Registrar, subject to strict witnessing and execution rules under Part 5 of that Act.

Beneficiary Designations (WESA)

Under Section 90 of the Wills, Estates and Succession Act [WESA], a representative exercising Section 7 financial authority cannot broadly alter testamentary designations. They may only renew, replace, or convert an existing beneficiary designation in benefit plans if the instrument mirrors an arrangement made by the adult while capable.

Pax Law Corporation assists clients in North Vancouver and throughout British Columbia with drafting comprehensive personal planning instruments. You can schedule a consultation with our legal team to establish an enduring incapacity plan tailored to your personal and financial circumstances.

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