Can a Representation Agreement Be Challenged or Cancelled in BC?

You may be worried that a relative signed a representation agreement under pressure, did not understand what they were signing, or now has a representative who is not acting properly. These concerns are serious, and British Columbia law gives several routes to raise them.

This article explains the grounds, who can act, how the Public Guardian and Trustee (PGT) investigates, and when the court becomes involved.

This article covers the law of British Columbia.

Starting point: capable adults are presumed capable

Every adult is presumed capable until the contrary is shown, and the way an adult communicates is not, on its own, grounds for finding them incapable. This matters because a challenge based on capacity has to deal with that presumption.

The capacity bar also depends on the type of agreement. For a section 7 agreement, an adult may sign even if they are incapable of making a contract or managing routine financial affairs. The law looks at factors such as whether the adult communicates a desire to have a representative, shows choices and preferences, knows the representative cares about them, and has a trusting relationship with that person. For a section 9 agreement, the test is higher: the adult must be able to understand the nature and consequences of the agreement.

Common grounds for a concern

Any person may object to the PGT if there is reason to believe any of the following:

• The representative is failing in their duties
• The adult lacked capability when making the agreement
• There was undue pressure or abuse

Technical problems can also matter. An agreement must be in writing and signed by the adult in front of 2 witnesses, although one witness is enough if that person is a lawyer or a member of the Society of Notaries Public of British Columbia. A representative must be 19 or older, and a person paid to provide personal or health care to the adult generally cannot act, except the adult's child, parent or spouse. If an agreement gives authority over routine financial affairs, it must usually name a monitor, or that provision is invalid. Spouses, the PGT, trust companies, credit unions and unanimous multiple representatives are exceptions.

What a representative must do, and how the PGT investigates

A representative must act honestly and in good faith, use reasonable care, stay within their authority, consult the adult about their current wishes where reasonable, and keep the adult's accounts and records separate. A monitor, if there is one, must make reasonable efforts to check this and must tell the PGT if concerns remain.

The PGT may investigate after an objection or on its own initiative, and may then take steps such as appointing a monitor or applying to court. It may also investigate and audit the affairs and accounts of a representative who has failed to comply with their duties, and may require them to produce accounts and records. In urgent cases, it may tell a financial institution not to allow withdrawals from the adult's account for up to 30 days, and no more than 120 days in total.

Concerns about an adult's financial and legal affairs are reported through the PGT's online reporting form, and Assessments and Investigations can be reached at 1-877-511-4111. Check the PGT's website for current contact details.

Court applications and how an agreement ends

On application, the court may confirm a change to or revocation of a representation agreement, or cancel all or part of it. The court may also give directions on interpreting an agreement, and court costs may be paid from the adult's assets. The court may not override the adult's wishes unless the adult is incapable, the order is in the adult's best interests, and the court gives reasons.

An agreement can also end without a court. A capable adult may change or revoke it at any time by following the required procedure and giving written notice. It ends on the adult's death, on cancellation by the court, or on the representative's incapacity, resignation or death, among other events. Financial provisions are cancelled automatically on events such as the bankruptcy of the adult or the representative, or the representative's conviction for an offence involving dishonesty.

What to do next

• Get a copy of the agreement and note its date, who witnessed it, and who the representative and any monitor are.
• Write down what you have seen, with dates, such as missing money, isolation or pressure.
• If the adult is capable, encourage them to speak with a lawyer about changing or revoking the agreement.
• If you have information that the adult is being abused or neglected, anyone may report it to a designated agency under Part 3 of the Adult Guardianship Act. For concerns about financial and legal affairs, use the PGT reporting route above.
• Speak with a lawyer before going to court, since the right step depends on the facts.

Frequently asked questions