The Representation Agreement Act (the RA Act) section 3, says 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 RA Act applies specifically to the RA7. It provides a different definition of capability than the traditional definition to ‘understand’ that applies to an RA9, enduring powers of attorney and contracts. Section 8 of the RA Act says that an adult may make an RA7 even if the adult cannot 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 from section 8 is just a list of examples and are not requirements or criteria for making an RA7. There is no specific up-front test of mental capability for making an RA7. Remember, the way an adult communicates is not a factor when considering capability. Some adults communicate through their behaviour and that is perfectly fine.

The idea of Representation Agreements (RAs) 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 RA gives legal status to personal supporters. 

Most people name a spouse, relative, close friend or member of their chosen family in their RA. The law does not restrict where they live (it can be another city, province, or country from you), although it is important to think about practical issues related to the roles such as time zone differences and travel time/costs if personal attendance where you are becomes necessary. 

NOTE: that if you appoint a “US Person” as a representative in an RA7 with financial authorities, the US Person may be subject to US Internal Revenue Service (IRS) reporting requirements about your financial accounts, including the filing of an FBAR form depending on the amount of assets you have. A “US Person” includes a US citizen (wherever located), a US resident (even if not a US citizen), and a US green card holder (wherever located). Similar reporting requirements or restrictions that we are not aware of may apply to RA7 representatives with financial powers residing in other countries. If you are thinking of appointing a personal living in another country in this financial role, you should speak to the foreign person about it first.  They may want to speak to their own foreign tax advisor. 

 There are many factors to consider about who is named in an RA, such as: 

• Their relationship with the adult;  
• Their skills and abilities;  
• Their willingness and ability to work with others named in the adult’s RA or in their other planning documents; and  
• Their respect for the adult’s wishes and values. 

You should also consider comments under “What are the restrictions on who is named as representative?”.

The Representation Agreement Act (RA Act) describes three roles. A representative is necessary (other roles are optional) but see the information under the monitor role for RA7s. Nidus promotes these roles to act like a team, working together with the adult.  

The roles available are: 

• representative(s) – the person (or people) who has legal authority to assist the adult or to act on the adult’s behalf.  

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

• monitor – a safeguard and ensures that the RA is working for the adult. A monitor cannot make decisions for the adult, and they are not like an alternate who ‘moves up’ if the first representative can no longer act.  Only one monitor can be named in an RA (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 of age or older and willing to accept their duties and perform their powers. Their duties and powers are outlined in section 20 of the Representation Agreement Act. 

A monitor cannot be an organization and therefore cannot be an officeholder or employee of an organization. An individual in their personal capacity agrees to be a monitor because of a personal relationship they have 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 this proposed monitor does not have a personal relationship with the adult such as a family member or friend. Is it fair or realistic to expect a paid staff or professional to be loyal to the adult and to their employer? This should be discussed and carefully considered. It is also important that the monitor can work as a team with the representative and alternate, to support the adult.  

See also the Nidus fact sheet on Role of a Monitor. 

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, reasonably and within the law and the terms of the Representation Agreement (RA). 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. 

See the examples above. Read more about duties in Role of Representative. 

To be named a representative, an individual must be at least 19 years old and willing to accept their duties. Their duties are outlined in section 16 of the Representation Agreement Act (the RA Act). 

Due to amendments (changes) on September 1, 2011, the law now has more restrictions. The adult cannot 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 RA7s may continue 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 RA7 will have paperwork to sign but do not need witnesses and can sign at a later time and at different times from one another. Detailed instructions come with the RA7 forms by Nidus and, if followed, the RA7 will be valid. 

We recommend that after creating a valid RA7, you register it with the Nidus Registry (this is your ultimate back-up – it reminds you where the original is located and a copy can be uploaded for future reference). Never lose the original RA7 – you need it to make copies, and it is proof of authority. Never make changes on the original either – consider signing a new, replacement RA instead if possible. Keep information updated in the Nidus Registry when changes occur.

No, it is not true that a monitor must be named for every 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 Representation Agreement Act (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 (together) for finances (special legal wording is required as in a custom RA7 – Nidus does not currently have an RA7 form for this). 

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 RA7 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 RA7s made before September 1, 2011, there was another exception to the extra safeguard requirement — if the RA7 was signed by a lawyer and the lawyer completed a Certificate of Consultation. This exception does not apply to RAs made after September 1, 2011. 

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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 reimbursing expenses) for making health care decisions on the adult’s behalf.

For a representative/alternate/monitor to be paid a fee for other authorities (such as managing routine financial affairs), this must be spelled out in the RA7 and it must be approved by the Supreme Court of BC.

Yes, the adult can revoke (cancel) their RA7. Part 4 of the Representation Agreement Act outlines procedures for revoking. Making a new RA does not automatically revoke a previous one.  See the Nidus fact sheet on Revoking an RA.

Some changes to a Representation Agreement (RA) do not make the RA invalid. Other types of changes (such as changing the people named or the authorities included) requires revoking (cancelling) the existing RA and making a new one.  See the Nidus fact sheet on on making changes. 

Yes, a representative, alternate, or monitor may resign from the Representation Agreement (RA) they are named in. Sometimes this may require the adult to make a new RA. See Related Information below for relevant fact sheets, in particular Resigning as a Representative and Resigning as a Monitor.

A Representation Agreement (RA) ends if the adult revokes (cancels) it, if the adult dies, and in certain other specific circumstances – for example, an RA also ends if someone is appointed to be the adult’s legal guardian (in BC, called a “committee”) unless the court decides otherwise. See Lifespan of a Representation Agreement. 

The best time to make an Agreement is well 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; the RA7 can give parents (and/or other supporters) legal status to continue to help these adults manage their affairs. 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.  

Most people will make more than one RA in their lifetime to address changing circumstances, especially if their first RA was made 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 the EPA. 
• An RA7 can include authority for routine finances but it 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 and in their own name. The same applies for an attorney acting under an EPA. If there is an existing joint bank account or other jointly owned asset, it can continue. But an RA7 or EPA cannot be used to set up a new joint ownership with the adult. In some cases, a representative or attorney might consider removing themselves from a pre-existing joint account and just help the adult manage that money and that bank account using the RA7 or EPA. 
• 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, provided 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 RA may be ended.

The Representation Agreement Act (RA Act) says you cannot authorize a representative: 

• To do anything that is against the law. 
  • For example, not paying the adult’s taxes.  
  • As another example, it is against the law for anyone, other than a physician or nurse practitioner, to provide the adult with Medical Assistance in Dying (MAiD). A Representation Agreement (RA) also cannot authorize the representative to request MAiD for the adult from a physician or nurse practitioner while the adult is incapable. The adult must be capable of consent to request MAiD themself. 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. 
  • This is often referred to as the ‘Mental Health Act Override.” 
  • The representative retains authority for other matters and decisions not related to the mental disorder.