No one likes to think about the possibility of their future incapacity, but it is important to plan ahead. There are some relatively simple planning tools you can use to ensure your affairs are managed if you become incapable of doing so.
One tool is a representation agreement, which allows you to appoint a person you trust to make personal and health care decisions on your behalf. Another option is an enduring power of attorney, which allows you to appoint a person you trust to make financial and legal decisions on your behalf.
What is a representation agreement?
A representation agreement is a legal document. It is used to appoint one or more persons as your representative to manage your health care and personal affairs if you become incapable due to age, illness, or injury. A representation agreement is effective from the date it is executed; once in place, the person(s) of your choice can “step into your shoes” and manage your affairs when needed. If you do not have a representation agreement in place and become incapable, a family member, friend, or the Public Guardian and Trustee might have to apply to court for “committeeship” to get authority to manage your affairs.
What are the differences between “section 7” and “section 9” representation agreements?
In BC, there are two types of representation agreements: section 7 agreements and section 9 agreements. There are crucial differences between the two:
- Section 9 representation agreements can grant broad powers. You can authorize your representative to do anything that your representative considers necessary in relation to your personal care and health care. This can include the care of your minor children and very significant health care matters such as making end-of-life decisions for you. You have the option of including your specific instructions or wishes in the agreement itself. There is a capacity requirement to make a section 9 representation agreement: you must have the capacity to understand the nature and consequences of making the agreement.
- Section 7 representation agreements are more limited in scope, and most often used if you have already lost some mental capacity. A section 7 representation agreement can be used to authorize your representative to make decisions on your behalf, or to help you make decisions, with respect to personal care and minor health care matters, the day-to-day management of your financial affairs (e.g., paying bills), obtaining legal services, and instructing legal counsel.
Representation Agreements are powerful documents. While there is no required format, you must ensure the specific legal requirements with respect to signing and witnessing of representation agreements are met or the agreement may not be valid. Consult with our experienced lawyers today to learn more about representation agreements and other estate planning options.
