Does a Representation Agreement Need a Monitor in BC?

A representation agreement lets an adult choose who will help with decisions if they can no longer manage on their own. When the agreement touches money, one question comes up often: does someone need to watch over the representative?

In British Columbia the answer is sometimes yes. This article explains when a monitor is legally required, what a monitor actually does, and where to turn if you are worried about how a representative is acting.

This article covers the law of British Columbia.

When a monitor is required

If a representation agreement gives the representative authority over the adult's routine financial affairs under section 7(1)(b) of the Representation Agreement Act, the agreement must name a monitor. If a required monitor is not named, that financial provision is invalid.

The rest of the agreement, such as personal care provisions, is a separate matter. The consequence the Act sets out is that the financial provision does not work without the monitor, so it is worth getting this right when the agreement is drawn up.

When no monitor is needed

The Act sets out exceptions. No monitor is required in any of these situations:

• The representative is the adult's spouse.
• The representative is the Public Guardian and Trustee.
• The representative is a trust company or a credit union.
• Two or more representatives must act unanimously.

If your situation is close to one of these, such as a partner who is not clearly a spouse or representatives who may act separately, it depends on the exact wording of the agreement. A lawyer can confirm whether an exception applies.

What a monitor does and what is being checked

A monitor must make reasonable efforts to check that the representative is complying with their duties under section 16 of the Act. The monitor may require the representative to produce accounts and records. If concerns remain, the monitor must tell the Public Guardian and Trustee.

These are the representative's duties, and they are what the monitor is measuring the representative against:

• Act honestly and in good faith.
• Use reasonable care and stay within the authority given.
• Consult the adult, to the extent reasonable, about their current wishes.
• Keep the adult's accounts and records separate.
• If the adult's wishes are not known, act on their known beliefs and values, or in their best interests if those are also unknown.

If you are worried about a representative

Any person may object to the Public Guardian and Trustee if there is reason to believe a representative is failing in their duties, the adult lacked capability, or there was undue pressure or abuse. The Public Guardian and Trustee may also investigate on its own initiative, and may then take steps such as appointing a monitor or applying to court.

Concerns about an adult's financial and legal affairs can be reported through the Public Guardian and Trustee's online form for reporting such concerns, or by calling Assessments and Investigations at 1-877-511-4111. Check the current contact details before you call, as they can change.

Separately, financial provisions in a representation agreement 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.

An adult who is capable may change or revoke their representation agreement at any time, following the required procedure and giving written notice. On application, the court may also confirm a change or revocation, or cancel all or part of an agreement, but it 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.

Witnessing rules and next steps

A representation agreement must be in writing and signed by the adult in the presence of 2 witnesses. Only one witness is needed if that witness is a lawyer or a member of the Society of Notaries Public of British Columbia.

• Check whether the agreement covers routine financial affairs.
• If it does, look for a named monitor, or for an exception that applies.
• Confirm how the agreement was signed and witnessed.
• Keep records of any concerns, such as missing accounts or unexplained withdrawals.
• Raise serious concerns with the Public Guardian and Trustee.
• Speak with a lawyer if the agreement is unclear or you are unsure whether it is valid.

Frequently asked questions