The Representation Agreement Act (the “Act”) section 3, states that until the contrary is demonstrated:

• Everyone is presumed capable of making their own decisions and of making a Representation Agreement, and
• The way an adult communicates does not prevent them from making a Representation Agreement.

Section 8 of the Act applies specifically to the RA7. It provides a different definition of capability than the traditional definition to ‘understand’ that was discussed on page 1. It says that an adult may make an RA7 even if the adult can not make a contract. This means an adult may make an RA7, even if it is not clear whether the adult ‘understands the nature and effect’ of the matters covered in an RA7.

Section 8 says all relevant factors must be considered about capability to make an RA7, for example:

• Whether the adult communicates a desire to have a representative make, help make, or stop making decisions; or
• Whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others; or
• Whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult; or
• Whether the adult has a relationship with the representative that is characterized by trust.

The above list of examples from section 8 are not requirements or criteria for making an RA7. There is no specific up-front test of mental capability. Remember, the way an adult communicates is not a factor when considering capability. Some adults communicate through their behaviour.

The idea of Representation Agreements is to strengthen or create a personal support network around an adult—so the adult has help when ill or injured and when dealing with service systems. An Agreement gives legal status to personal supporters.

Most people name a spouse, family member, or friend in their Agreement. The law does not restrict where they live (it can be another city, province, or country), although it is important to think about practical issues related to the roles. There are many factors to consider about who is named in a Representation Agreement, such as:

• Their relationship with the adult; 
• Their skills and abilities; 
• Their willingness to work with others named in the adult’s Agreement; and 
• Their respect for the adult’s wishes and values.

The Representation Agreement Act describes three roles. A representative is necessary, other roles are optional, but see the information under the monitor role. Nidus promotes these roles to act like a team, working together with the adult. The roles available are:

a) A representative(s) is the person who has legal authority to assist the adult or to act on the adult’s behalf. 

b) An alternate representative(s) is a back-up in case the representative is unable or unwilling to act or continue to act.

c) A monitor is a safeguard and ensures that the Agreement is working for the adult. A monitor can not make decisions for the adult and they are not like an alternate who ‘moves up.’ Only one monitor can be named in an Agreement (the law does not provide for naming more than one or for naming an alternate monitor).

Note: The monitor role is common for an RA7 because of the extra safeguard requirement if an Agreement includes finances.

To be named a monitor, an individual must be 19 years or older and willing to accept their duties. Their duties are outlined in section 20 of the Representation Agreement Act.

A monitor can not be an organization and therefore can not be a position within an organization. An individual agrees to be a monitor because of a personal relationship with the adult.

NOTE: Although it is not restricted by the law, it could be a conflict and a challenge for someone in a paid role, that is directly related to providing services to the adult, to be named as a monitor. This would be especially true if the person does not have a personal relationship with the adult such as a family member or friend. Is it is fair or realistic to expect a paid staff or professional to be loyal to the adult and to their employer? This should be discussed. It is also important that the monitor can work as a team with the representative and alternate, to support the adult.

The duties of a representative are outlined in section 16 of the Representation Agreement Act, which says that a representative must act honestly, in good faith, and within the law. A representative is there to assist the adult to participate in decisions affecting them. This means a representative needs to be contacted and involved—they need to know what is going on in case they are called in at some point to act on the adult’s behalf.

Due to amendments on September 1, 2011, the law now has some restrictions on who can be named. The adult can not name an individual as a representative (or an alternate), if:

• The individual is compensated to provide health care or personal care services to the adult (e.g. a paid caregiver, home share provider); or 
• The individual is an employee of a facility where the adult lives and the facility provides health care or personal care services to the adult (e.g. assisted living residence, care facility).

These restrictions do not apply if the individual is the adult’s spouse, parent, or child. An RA7 made before September 1, 2011 did not have these restrictions and the law says such Agreements may continue to be in effect and are not affected by the restrictions.

An RA7, using Nidus forms, comes into effect immediately, when all signing is completed, so it is ready-to-go when needed. An RA7 requires all Certificates to be completed and attached or the RA7 is not in effect.

The Nidus RA7 form comes with Certificates and pages which are numbered so you can keep everything in order. The adult and witnesses must sign together at the same time. Others named in the Agreement will have paperwork to sign but do not need witnesses and can sign at a later time and at different times. Detailed instructions come with the Representation Agreement forms by Nidus and, if followed, the Agreement will be valid.

Make sure the Agreement is registered (this is your ultimate back-up and reminds you where the original is located). Never lose the original—you need it to make copies and it is proof of authority. Never make changes on your original; keep information updated in the Registry.

No, it is not true that a monitor must be named for an RA7, but if the RA7 includes finances and there is no monitor, other wording is required to meet the extra safeguard requirement. it is common that a monitor is named because it meets the extra safeguard requirement for routine finances and provides the most flexibility.

The RA Act says an extra safeguard is required if the authority for routine management of financial affairs (one of the authorities under section 7) is included in a Representation Agreement. The extra safeguard requirement can be met by:

1. Naming someone in the monitor role; or
2. Naming two or more representatives who must act jointly for finances (special legal wording is required as in a Custom RA7).

The law provides one exception to the extra safeguard requirement. If the representative is the adult’s spouse, an extra safeguard is not required for routine finances. But be careful, if the same Agreement names an alternate (not a spouse) and finances are included, an extra safeguard would be required for the alternate to act. The extra safeguard has nothing to do with whether or not the adult trusts a parent, son/daughter, sister/brother, or friend with their finances, it is a requirement of the RA Act.

NOTE: For Agreements made before September 1, 2011, there was another exception to the extra safeguard requirement — if the Agreement was signed by a lawyer and the lawyer completed a Certificate of Consultation. This exception does not apply to Representation Agreements made after September 1, 2011.

Representatives, alternate representatives, and the monitor are entitled to be reimbursed for reasonable out-of-pocket expenses related to carrying out their duties. The law says a representative cannot receive a fee (on top of expenses) for making health care decisions on the adult’s behalf. For a representative/alternate/monitor to be paid a fee for other authorities, this must be spelled out in the Agreement and it must be approved by the Supreme Court of BC.

Yes, the adult can revoke (cancel) their Agreement. The Representation Agreement Act outlines specific requirements for revoking. Making a new Representation Agreement does not automatically revoke a previous one. See Related Information below for a resource on Revoking.

Some changes to a Representation Agreement do not make the Agreement invalid. However, changing the people named or the authorities included requires revoking (cancelling) the existing Agreement and making a new one. See Related Information below for a resource on making changes.

Yes, a representative, alternate, or monitor may resign from the Agreement they are named in. Sometimes this may require the adult to make a new Agreement. See Related Information below for resources on resigning.

A Representation Agreement ends if the adult revokes (cancels) it and when the adult dies. An Agreement also ends if someone is appointed to be the adult’s legal guardian (in BC, called a committee) – unless the court decides otherwise. See Related Information below for a resource on Lifespan of a Representation Agreement.

The best time to make an Agreement is before a crisis occurs. Many people with a disability from birth or childhood, make an RA7 when they become an adult (age 19), because parental rights end. However, the role of representative is different from that of a parent. A representative helps the adult be respected for their own wishes and needs. Almost everyone will make more than one Representation Agreement in their lifetime, especially if their first one is at age 19.

Because the RA7 has a different definition of capability than the traditional requirement to ‘understand,’ the RA7 does not include all authorities that can be covered in an Enduring Power of Attorney (EPA) and a Section 9 Representation Agreement (RA9). For example:

• An RA7 can include authority for routine finances but this does not cover dealing with real estate. An EPA can cover real estate if the adult meets the capability requirements when they make it.
• An RA7 can include authority for minor and major health care but this does not authorize a representative to have the final say to refuse life supporting health care. This can be covered in an RA9, providing the adult meets the capability requirements when they make the RA9.

The RA7 forms by Nidus include details of the representative’s authorities. The information section of the form explains what is not covered and ways that an Agreement may be ended. See page 7 on where to find the RA7 forms by Nidus.

NOTE: An RA7 does not allow a representative to set up a joint bank account with the adult. The adult’s property, including bank accounts, must be kept separate. This is a common misunderstanding. An RA7 with authority for routine finances allows a representative to assist an adult with their bank account. However, the bank account stays in the adult’s name. This is an important principle behind the RA Act. The same applies to an EPA. If there is an existing joint bank account or other jointly owned property, it can continue. But, an RA7 or EPA cannot set up a new joint ownership with the adult. In some cases, a person might consider removing themselves from the joint account and help the adult manage their money and their bank account using the RA7 or EPA.

The RA Act says you can not authorize a representative:

• To do anything that is against the law — such as not pay the adult’s taxes or to help an adult commit suicide or request medical assistance in dying for the adult. 
• To give consent to sterilization of the adult for non-therapeutic purposes. 
• To refuse consent to treatment or placement related to the adult’s mental disorder if the adult is involuntarily committed under the Mental Health Act. NOTE: This is often referred to as the ‘Mental Health Act Override.” – The representative retains authority for other matters not related to the mental disorder.