Power of Attorney vs Representation Agreement in BC: Key Differences

Planning ahead raises a practical question: if you could not make decisions yourself, who would pay your bills, and who would speak for you at the hospital? In British Columbia, two different documents answer those two questions, and people often confuse them.

This article explains what an enduring power of attorney and a representation agreement each do, where they overlap, and how to think about whether you need both. It is general information, not advice for your situation.

Neither document is the same as a will, which only takes effect after death and is not covered here.

This article covers the law of British Columbia.

The short answer: money versus personal and health care

An enduring power of attorney deals only with legal and financial affairs. A representation agreement is the document used to name someone for personal care and health care decisions.

The line is not perfectly clean, because one type of representation agreement can also reach routine financial matters. The table gives a quick comparison.

What an enduring power of attorney does

Your attorney handles your property and legal affairs. An attorney under an enduring power of attorney must act honestly and in good faith and in your best interests, keep your property separate from their own, and keep prescribed records and produce them for inspection and copying.

If there is a concern about how an attorney is acting, the court can terminate all or part of the power of attorney, or order that it and everything done under it is void. The Public Guardian and Trustee may also investigate and audit an attorney who has failed to comply with their duties.

What a representation agreement does

The Representation Agreement Act lets adults arrange in advance how decisions will be made if they become incapable, and aims to avoid the need for court-appointed decision makers. There are two main kinds.

• Section 7 (standard provisions): a representative may help make, or make, decisions about personal care, routine management of financial affairs, major and minor health care (except prescribed kinds), and obtaining legal services and instructing counsel. Divorce proceedings are excluded.
• Section 9 (non-standard provisions): a representative may do anything they consider necessary in relation to personal care or health care, including deciding where and with whom you live and consenting to health care.

There are limits. A section 7 representative cannot be authorized to refuse health care necessary to preserve life, or to physically restrain, move or manage 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, subject to the Act's limits.

The capacity needed is also different. You may make a section 7 agreement even if you cannot manage routine financial affairs or make a contract, and the Act looks at factors such as trust in the representative and whether you show choices and preferences. For a section 9 agreement, you may sign unless you are incapable of understanding the nature and consequences of the proposed agreement.

Do you need both?

Many people want both, because each covers ground the other does not. A power of attorney does not reach health care or personal care, and a section 9 agreement does not reach finances. A section 7 agreement can cover routine financial management, but it is limited to its list of permitted activities. Whether that is enough for your finances depends on your assets and circumstances, which a lawyer can help you weigh.

It helps to think about the gaps. If you have no personal guardian or representative with authority, a health care provider chooses a temporary substitute decision maker from a set order, starting with a spouse, then child, parent and others, and that person must meet certain conditions. A married person living separate and apart from you does not count as a spouse for this purpose.

Also note that if a person becomes a patient under the Patients Property Act, their powers of attorney and the property-related provisions of their representation agreement are suspended, and may be ended if the Public Guardian and Trustee decides to manage the property.

Rules that apply to the people and paperwork

• Who can be a representative: a representative must be 19 or older. Someone paid to provide you with personal or health care, or who works at a facility where you live and receive care, cannot act, but your child, parent or spouse may even if paid to provide that care.
• Monitor: a section 7 agreement that gives authority over routine financial affairs 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.
• Signing: the agreement must be in writing and signed by you in the presence of 2 witnesses. A witness cannot be a representative or an alternate, or the spouse, child or parent of a person named as either. One witness is enough if that person is a lawyer or a member of the Society of Notaries Public of British Columbia.
• Certificates: for a section 7 agreement to be effective, the certificates in the Representation Agreement Regulation (Forms 1 to 4, as applicable) must be completed.
• Start date: an agreement is effective when signed unless it names a later date or a triggering event.

A representative must act honestly and in good faith, use reasonable care, stay within their authority, consult you as far as reasonable about your current wishes, and keep your accounts and records separate. A monitor can require accounts and records and must tell the Public Guardian and Trustee if concerns remain.

What to do next

• List what you want covered: bill paying and property, health care decisions, or both.
• Think about who you trust for each role, and whether one person or different people suit each.
• Check that your choices are eligible to act and that any needed monitor is named.
• Talk with your chosen people about your wishes, since they must consult you and follow your wishes where known.
• Ask a lawyer to explain which type of representation agreement fits your needs and to confirm the signing and certificate steps.
• Review your documents over time; a capable adult can change or revoke a representation agreement, and it ends on death or other events.

Frequently asked questions