By Vienna Kappell, Notary Public for Notaries on Douglas, Victoria, BC
In British Columbia, there are two key personal planning documents: Enduring Powers of Attorney and Representation Agreements.
An Enduring Power of Attorney deals strictly with financial and legal matters while a Representation Agreement may deal with personal and health care matters and or legal and routine financial matters. There are two types of Representation Agreements with important differences between them and which documents a person will make depends largely on their mental capacity at the time they are made.
British Columbia has laws that make it possible for nearly all adults, at almost any point in their life, to have a say in planning for their future.
It was not always so, but since the Representation Agreement Act came into force in 2000, adults with diminished mental capacity, whether that be due to dementia, disability, or handicap, are able to appoint those that they know and trust to assist them in making decisions and to act for them when they can’t act for themselves. Prior to 2000, adults with diminished mental capacity were likely to lose their rights through adult guardianship when a Committee was appointed through the courts. With this alternate view of mental capacity, a person with diminished capacity is able to make a Representation Agreement Section 7, leaving them in charge of their personal matters to the extent possible, and with those people that they choose to assist them and act for them as needed.
A Section 7 Representation Agreement can cover routine financial matters, legal matters, personal care decisions such as where they will live, and most health care decisions, although the agreement need not cover all of those areas. In other words, an adult could make a Section 7 Representation Agreement appointing someone to act for them in personal and health care matters only, or legal and routine financial matters only.
Where mental capacity is not an issue, an adult would normally choose to make two documents: an Enduring Power of Attorney for financial and legal matters and a Section 9 Representation Agreement for health care and personal care matters. Section 9 Representation Agreements made after 2011 cover personal care and health care only (prior to this Section 9 Representation Agreements could cover financial and legal matters as well). This type of agreement is the most comprehensive personal care and health care agreement available in BC and may include authority for the appointed person to give or refuse health care necessary to preserve life.
An Enduring Power of Attorney is broader in scope and more powerful than the financial powers conferred by a Section 7 Representation Agreement. It may allow the appointed person to do anything the adult could do with their legal and financial matters, including dealing with real property.
It is a good idea to speak to your legal professional if you are interested in creating personal planning documents for yourself, and to read more about it on the Nidus Personal Planning and Resource Centre at www.nidus.ca.