Wills and Estates Planning
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What happens if an illness, injury or disability means you can no longer make your own decisions about care? In British Columbia, a representation agreement lets you choose, in advance, the trusted person who will help you decide or decide for you about personal care, health care and some other matters.
This guide explains, in plain language, what a representation agreement is under the Representation Agreement Act, the difference between a standard (section 7) and an enhanced (section 9) agreement, who can be your representative, when a monitor is needed, how to sign it properly, and what happens if you do not have one. It is general information about British Columbia law only.
In this guide
Prefer to watch? This short explainer walks through standard and enhanced agreements, representatives, monitors and signing rules. The full guide continues below.
A representation agreement is a written legal document in which an adult names one or more people, called representatives, to help them make decisions or to make decisions on their behalf. The Act says its purpose is to let adults arrange in advance how, when and by whom decisions about their health care, personal care, routine financial affairs and other matters will be made if they become incapable of deciding independently, and to avoid the need for a court to appoint someone (sections 1 and 2).
Every adult is presumed capable of making, changing or revoking a representation agreement until the contrary is shown. The way a person communicates, for example with assistive devices or a support person, is not by itself a reason to decide that they lack capability (section 3).
Representation agreements are not only for older adults. People often consider one when they are planning for aging or a serious diagnosis, living with a disability, supporting an adult child with a disability, or simply want a person they trust, rather than a default list in the law, to speak for them about care. Pax Law Corporation helps clients in British Columbia with representation agreements as part of broader estate planning.
A standard agreement under section 7 can authorize your representative to help you decide, or to decide for you, about any or all of these areas:
There are firm limits. A section 7 agreement cannot authorize a representative to refuse health care that is necessary to preserve life, or to physically restrain, move or manage you over your objection (section 7(2.1)). Section 7 also limits care-facility admission decisions to certain types of homes (section 7(2)).
The capability test for a standard agreement is deliberately flexible. Under section 8, you can make a section 7 agreement even if you cannot make a contract or manage your own health care, personal care, legal matters or routine finances. Instead, all relevant factors are considered, for example whether you:
This is why standard agreements are often used by adults living with cognitive or developmental disabilities.
A non-standard agreement under section 9, often called an enhanced agreement, can give much broader authority over personal care and health care. It can authorize a representative to decide where and with whom you live, including whether you live in a care facility; to make day-to-day decisions; to decide about contact with other people; and to give or refuse consent to health care, including in some circumstances when you refuse at the time. If the representative is given authority over health care consent, it can include refusing health care necessary to preserve life (section 9(3)).
Because the powers are wider, the capability test is stricter: you must be capable of understanding the nature and consequences of the proposed agreement (section 10). Some things can never be authorized, such as consent to non-therapeutic sterilization (section 11).
Under section 5, you can name an individual who is 19 or older, as long as that person does not provide personal care or health care services to you for pay and is not an employee of a facility where you live and receive care. That restriction does not apply if the person is your child, parent or spouse. You may also name the Public Guardian and Trustee, or a credit union or trust company for matters that do not include health care or personal care.
If you name two or more representatives for the same area, they must act unanimously unless your agreement says otherwise. You can also name an alternate representative, and the agreement must say when the alternate may act, for example if your representative dies or is unwilling to act (section 6).
If a standard agreement gives your representative authority over routine financial affairs, you must usually name a monitor: an individual at least 19 years old who is willing and able to oversee the representative (section 12). A monitor is not required if your representative is your spouse, the Public Guardian and Trustee, a trust company or a credit union, or if two or more representatives must act unanimously on all financial decisions.
This matters: if a required monitor is left out, the financial-management part of the agreement is invalid.
A representation agreement must be in writing. Under section 13, you sign in the presence of two witnesses, who sign in your presence and in the presence of each other. Only one witness is needed if that witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia.
An agreement takes effect when it is properly executed, unless it says it starts on a later event (section 15). Registering it with a private registry is not a legal requirement for it to be valid, although some people choose to do so.
Section 16 sets clear duties. A representative must act honestly and in good faith, exercise the care, diligence and skill of a reasonably prudent person, and act within the authority given. When helping or deciding, the representative must consult you, to the extent reasonable, to find out your current wishes and follow them if it is reasonable to do so.
If your current wishes cannot be known or followed, the representative follows the wishes you expressed while capable; if those are not known, your known beliefs and values; and if those are also unknown, your best interests. A representative must keep records and, for finances, generally keep your assets separate from their own.
Many people in British Columbia use these documents together, along with a will.
For health care, if you cannot consent and have no representative or guardian, the health care provider must choose a temporary substitute decision maker in a set order: your spouse, child, parent, sibling, grandparent, grandchild, anyone else related by birth or adoption, a close friend, then a person related by marriage. The person must be at least 19, have been in contact with you in the past 12 months, have no dispute with you and be willing to follow the statutory duties. If no one qualifies, the provider chooses a person authorized by the Public Guardian and Trustee (Health Care (Consent) and Care Facility (Admission) Act, section 16).
For finances, the Public Guardian and Trustee may become your statutory property guardian after a formal incapability assessment (section 32 of the Adult Guardianship Act), or a family member may apply to court for a committeeship under the Patients Property Act. These routes can take time and cost more than planning ahead, and they may not reflect who you would have chosen.
While you are capable of making the agreement, you can change it or revoke it. A change must be signed and witnessed the same way as the original. A revocation requires written notice to each representative, each alternate and the monitor, if any, and it takes effect once all of them have been notified or on a later date stated in the notice (section 27).
An agreement also ends on your death, if a court cancels it, and in other events listed in section 29, such as the death or resignation of the representative. If you and your representative are spouses and the relationship ends, the agreement may end unless it says otherwise. In Hollander v Mooney, 2017 BCCA 238, the British Columbia Court of Appeal confirmed that a representative’s authority does not continue after the agreement ends.
Consider legal advice if you want enhanced health care powers, if there are family disagreements, if your capability may later be questioned, if you also need an enduring power of attorney or a will, or if you own property or have complex finances. Every situation is different, and a lawyer can help make sure the document is properly prepared and signed.
What is a representation agreement in BC?
It is a written document under the Representation Agreement Act in which an adult names a trusted person, called a representative, to help them make decisions or to make decisions for them about personal care, health care and some other matters.
What is the difference between a section 7 and a section 9 agreement?
A section 7 (standard) agreement covers personal care, routine financial management, health care and legal matters and has a flexible capability test. A section 9 (enhanced) agreement can give broader personal care and health care powers, such as deciding whether you live in a care facility, and requires that you understand the nature and consequences of the agreement.
Can a representative refuse life-saving treatment for me?
Not under a standard section 7 agreement. Under an enhanced section 9 agreement, a representative who is given authority over health care consent may give or refuse consent to health care necessary to preserve life.
Who can be my representative?
An individual aged 19 or older who is not paid to provide you with personal or health care and is not an employee of the facility where you live and receive care, unless that person is your child, parent or spouse. The Public Guardian and Trustee, or a credit union or trust company for non-care matters, may also be named.
Do I need a monitor?
Usually yes, if a standard agreement covers routine financial affairs. A monitor is not needed if your representative is your spouse, the Public Guardian and Trustee, a trust company or a credit union, or if two or more representatives must act unanimously on all financial decisions.
How many witnesses do I need?
Two witnesses who sign in your presence and in the presence of each other, or only one witness if that witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia.
Does a representation agreement have to be registered?
The Act does not make registration a condition of validity. An agreement takes effect when it is properly executed, unless it states a later start. Some people choose to register it with a private registry so it is easier to find.
Is a representation agreement the same as a power of attorney?
No. An enduring power of attorney covers financial affairs, including business, property and legal affairs. A representation agreement mainly covers personal care and health care. If they conflict on financial matters, the enduring power of attorney prevails.
What is the difference from an advance directive?
An advance directive is your own instruction to give or refuse specific health care. A representation agreement appoints a person to decide. You can have both, and the law explains how they work together.
What happens if I lose capacity without a representation agreement?
For health care, a provider chooses a temporary substitute decision maker from a set list of relatives and close friends. For finances, the Public Guardian and Trustee may become statutory property guardian, or someone may apply to court for committeeship.
Can I cancel or change my representation agreement?
Yes, while you are capable of making it. A change must be executed like the original agreement, and a revocation requires written notice to each representative, alternate and monitor.
What duties does my representative have?
They must act honestly and in good faith, use reasonable care and skill, stay within their authority, consult you about your current wishes, and follow your capable wishes, beliefs and values, or your best interests if those are unknown. They must also keep records.
If you are planning ahead for yourself or a family member, Pax Law Corporation can review your situation with you.
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Disclaimer: This article is general information only, not legal advice. It reflects British Columbia’s Representation Agreement Act and related legislation as of the date of publication. Laws change and every situation is different. Reading this article does not create a lawyer-client relationship. Speak with a lawyer about your own circumstances before you act.
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