Power of Attorney vs Representation Agreement in British Columbia

Planning for a time when you might not be able to make your own decisions raises a practical question: who handles your bank accounts, and who speaks for you at the hospital? In British Columbia, these are often handled by two different documents, and people regularly mix them up.

This article explains what an enduring power of attorney and a representation agreement each do, how they differ, and how to think about whether you need both.

This article covers the law of British Columbia.

The short version: money versus personal care

The Public Guardian and Trustee describes an enduring power of attorney as dealing only with legal and financial affairs. A representation agreement is aimed at personal care and health care decisions, although one type can also reach routine financial matters.

The purpose of the Representation Agreement Act is to let adults arrange in advance how decisions will be made if they become incapable, and to avoid the need for court-appointed decision makers.

Two kinds of representation agreement

A representation agreement can be made under section 7 (standard provisions) or section 9 (non-standard provisions). They cover different ground and use different capacity tests.

Both have limits. A section 7 representative cannot be authorized to refuse health care necessary to preserve life, or to restrain or move you over your objection. Under section 9, a representative still cannot consent to certain prescribed kinds of health care, arrange temporary care for your dependants, or interfere with your religious practices unless expressly authorized.

Who can be chosen and what rules apply

• A representative must be 19 or older. Someone paid to provide you personal or health care, or who works at a facility where you live and receive care, cannot act.
• Your child, parent or spouse may still be named even if paid to provide that care.
• If an agreement gives authority over routine finances, it must name a monitor, or that provision is invalid. No monitor is needed if the representative is your spouse, the Public Guardian and Trustee, a trust company or a credit union, or if two or more representatives must act unanimously.
• The agreement must be in writing and signed in front of 2 witnesses, who cannot be a representative, an alternate, or their spouse, child or parent. One witness is enough if that person is a lawyer or a member of the Society of Notaries Public of British Columbia.
• For a section 7 agreement to be effective, the certificates set out in the Representation Agreement Regulation (Forms 1 to 4, as applicable) must be completed.

When they start, how they end, and how they are policed

A representation agreement becomes effective when it is signed, unless it names a later date or a triggering event. Every adult is presumed capable until the contrary is shown, and the way you communicate is not on its own grounds for finding you incapable.

A representative must act honestly and in good faith, use reasonable care, stay within their authority, consult you where reasonable, and keep your accounts and records separate. An attorney under an enduring power of attorney must also act honestly, in good faith and in your best interests, keep your property separate from their own, and keep prescribed records.

You can change or revoke a representation agreement while you are capable, by following the required procedure and giving written notice. It ends on your death, on court cancellation, or on the representative's incapacity, resignation or death, among other events. Financial provisions are cancelled automatically on events such as bankruptcy or a representative's conviction for dishonesty.

If someone is concerned about a representative, any person may object to the Public Guardian and Trustee, and the court can cancel all or part of an agreement or an enduring power of attorney.

Do you need both, and what to do next

Because the two documents cover different ground, many people consider both: one for legal and financial affairs and one for personal and health care. Because a section 7 agreement can include routine financial management, there can be overlap, so the documents should be coordinated. If a court later declares you incapable of managing your affairs, powers of attorney and the property-related parts of a representation agreement are suspended.

• List who you trust to handle money and who you trust for health and personal care.
• Check each person meets the eligibility rules and would be willing to act.
• Decide whether you want a monitor, alternates or more than one representative.
• Ask a lawyer to confirm whether you need a section 7 agreement, a section 9 agreement, a power of attorney, or a combination.

Frequently asked questions