By Amy-Alexandra Jaworsky
Any adult who is mentally capable can authorize a trusted person to deal with their financial and legal matters by signing a Power of Attorney. That adult can also authorize a trusted person to act on their behalf in relation to health and personal care matters by signing a Section 9 Representation Agreement (we refer to it as an RA-7). A Power of Attorney is the gold standard for authority over financial and legal matters and an RA-9 is the gold standard for power over health care and personal care matters.
But what if a person has cognitive difficulties due to an accident or injury, is getting on in years, or has trouble understanding information or making decisions on their own for some other reason? Although this is precisely the situation where a person would need a representative, they may not be able to meet the capacity requirements to make a Power of Attorney or an RA-9.
One possible solution may be for the adult to appoint a trusted person by signing a Section 7 Representation Agreement (we refer to it as an RA-7). An RA-7 can be described as a less powerful cousin of the Power of Attorney and the RA-9 combined into one document with built-in limitations and safety checks on authority.
An RA-7 can permit a representative to help the adult make decisions about certain health and personal care matters or about certain financial and legal matters (or all of these together). There is no specific test for capacity, but factors to consider when deciding if an adult can sign an RA-7 include whether they can communicate a desire to make an RA-7 and whether they understand that the RA-7 allows the representative to make decisions on their behalf. Additionally, consider whether the person they are appointing is someone with whom they have a trusting relationship.
An RA-7 has limitations and built-in safety checks because it does not give blanket authority for all decisions. An RA-7 only permits dealing with the specific routine financial matters listed in section 2 of the regulations to the Representation Agreement Act (such as paying bills, depositing funds, and filing taxes). However, it does not include the authority to lend or gift the adult’s property, use the adult’s credit cards, or deal with the adult’s land.
To be valid, there are specific formalities that must be satisfied – if there is only one representative appointed to take care of financial matters and they are not the spouse of the adult, a monitor must agree to oversee the actions of the representative. The representative, the monitor, and the witnesses to the adult’s signature must also sign and attach a certificate to the RA-7. Whether an RA-7 is appropriate depends on the adult’s circumstances and the type of assistance that the adult needs.
Alexandra Jaworsky is a Victoria lawyer practicing in the areas of wills, probate, and residential real estate matters. Email: amy@islandlawoffice.ca, Telephone: 250-858-0344
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