Can a Representation Agreement Be Made After Dementia Diagnosis in BC?

When a parent or spouse is diagnosed with early dementia, families often worry that it is too late to put decision-making help in place. In British Columbia, that is not always true, because the law ties capacity to the type of agreement and not to a diagnosis.

This article explains the two kinds of representation agreement, the capacity test for each, and the practical steps involved. Whether a particular person can sign is a question of fact, so it is worth getting advice early.

This article covers the law of British Columbia.

A diagnosis is not the same as incapacity

Under the Representation Agreement Act, every adult is presumed capable until the contrary is shown. The way an adult communicates is not, on its own, grounds for finding them incapable.

The Act exists so that adults can arrange in advance how decisions will be made if they become incapable, and to avoid the need for court-appointed decision makers. That purpose is why the law sets lower thresholds than many people expect.

Two kinds of agreement, two capacity tests

A section 7 agreement uses standard provisions. It may authorize a representative to 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.

A section 9 agreement uses non-standard provisions. It may authorize a representative to do anything the representative considers necessary in relation to personal care or health care, including deciding where the adult lives and with whom, and consenting to health care. It does not cover finances.

An enduring power of attorney is a different document that deals only with legal and financial affairs. The capacity needed for it is not covered here, so ask a lawyer about it.

What the section 7 test looks at

In deciding whether an adult can make a section 7 agreement, all relevant factors must be considered. These include whether the adult:

• communicates a desire to have a representative make, help make or stop making decisions
• shows choices and preferences and can express feelings of approval or disapproval of others
• knows the representative cares about their well-being
• has a relationship with the representative characterized by trust

This means a person with early dementia may still qualify even if they could not manage a bank account or sign a contract. For a section 9 agreement the bar is higher, since the adult must understand the nature and consequences of the agreement.

Getting the paperwork right

A representation agreement must be in writing and signed by the adult in the presence of 2 witnesses. A witness cannot be a representative, an alternate, or the spouse, child or parent of a person named as either. Only one witness is needed if the witness 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.

Other points to settle while choosing the representative:

• The representative must be 19 or older. Someone paid to provide personal or health care to the adult, or who works at the facility where the adult lives, cannot act, although the adult's child, parent or spouse may be named even if paid.
• If the agreement gives authority over routine financial affairs, it must name a monitor, or that provision is invalid.
• No monitor is required if the representative is the adult's spouse, the Public Guardian and Trustee, a trust company or a credit union, or if two or more representatives must act unanimously.
• The agreement is effective when signed unless it names a later date or a triggering event.

What to do next

Timing matters, because capacity can change. If you are considering an agreement, act promptly and keep a record of how the person expressed their wishes and why they chose the representative.

Anyone may object to the Public Guardian and Trustee if there is reason to believe the adult lacked capability or there was undue pressure or abuse. A signing that is well documented and properly witnessed helps guard against that kind of challenge. A lawyer can assess capacity issues for your situation and arrange the correct form of agreement.

• Ask the person's doctor for a current view of how they are doing.
• Meet with the person alone, so their wishes are their own.
• Decide whether personal care, health care, finances or all three need cover.
• Book a lawyer visit soon, since the right type of agreement depends on capacity.

Frequently asked questions