What Happens When Your Representation Agreement Is Not Honoured in BC?

You hold a representation agreement, yet a hospital, care home or bank is hesitating. They may ask for more paperwork, question what the agreement covers, or turn to a family member instead. That is stressful when the person you represent needs decisions made now.

This article explains the common reasons an agreement is questioned, what to check first, what happens in health care if the agreement is not accepted, and where to turn if the problem continues.

This article covers the law of British Columbia.

Why an agreement gets questioned

Institutions are cautious because a representation agreement only has the powers the Representation Agreement Act allows. A section 7 agreement covers a listed set of matters: personal care, routine management of financial affairs, major and minor health care, and obtaining legal services and instructing counsel. A section 9 agreement covers personal and health care with non-standard powers, and it does not cover finances.

So a bank may question whether your agreement reaches beyond routine finances, and a hospital may question whether it covers a particular treatment. Some limits are built in: a section 7 representative cannot be authorized to refuse health care necessary to preserve life, or to physically restrain, move or manage the adult over their objection.

Check the agreement before you push back

Many disputes come down to a technical gap. Go through the document and your own role against this list.

• Has the agreement started? It takes effect on the date it was signed unless it names a later date or a triggering event.
• Was it in writing and signed by the adult in front of 2 witnesses, or one witness if that person is a lawyer or a member of the Society of Notaries Public of British Columbia?
• For a section 7 agreement, were the required certificates from the Representation Agreement Regulation completed?
• If it covers routine financial affairs, does it name a monitor? Without a required monitor, that financial provision is invalid, unless the representative is the adult's spouse, the Public Guardian and Trustee, a trust company or a credit union, or two or more representatives must act unanimously.
• Are you eligible? A representative must be 19 or older, and a paid care provider or a worker at the facility where the adult lives generally cannot act, though the adult's child, parent or spouse can still be named even if paid.
• Has anything ended it, such as the adult's death, a court cancellation, or the representative's incapacity, resignation or death?

Financial provisions are also cancelled automatically on events such as the bankruptcy of the adult or the representative, or the representative's conviction for an offence involving dishonesty.

When a health care provider will not accept it

A health care provider must not give health care to an adult without the adult's consent, except as the Health Care (Consent) and Care Facility (Admission) Act allows. Whether the adult can consent depends on whether they demonstrate that they understand the information given and that it applies to their situation. If the adult has a representative with authority, the provider gets substitute consent from that person and does not choose a temporary substitute decision maker.

If the provider concludes your agreement does not cover the decision, or is not valid, they may turn to a temporary substitute decision maker. The provider must choose the first qualified person in this order: spouse, child, parent, sibling, grandparent, grandchild, anyone else related by birth or adoption, a close friend, then a person related by marriage. A married person living separate and apart from the adult does not count as a spouse for this purpose.

Urgent care is different. Health care can be given without consent if it is needed without delay to preserve the adult's life, among other conditions.

Ways to resolve the dispute

• Ask the institution in writing what it needs, and which part of the agreement it doubts. A clear answer often shows a fixable gap.
• Remember the starting point: 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. Capability to make a section 7 agreement is a lower standard than many people expect.
• Anyone may object to the Public Guardian and Trustee if they believe a representative is failing in their duties, the adult lacked capability, or there was undue pressure or abuse.
• The court can, on application, give directions on interpreting an agreement, confirm a change or revocation, or cancel all or part of it. 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.

If you are a representative, expect your own conduct to be looked at. You must act honestly and in good faith, use reasonable care, stay within your authority, consult the adult as far as reasonable, and keep the adult's accounts and records separate. A monitor, where there is one, can require you to produce accounts and records.

What to do next

• Gather the signed agreement, any certificates, and the contact details of the person who dealt with the witnessing.
• Ask the hospital, care home or bank for its concern in writing and keep copies of every exchange.
• Note which decisions are urgent and which can wait while the problem is sorted out.
• If the agreement looks defective, ask a lawyer whether it can be fixed, or whether another route such as committeeship is needed. The Public Guardian and Trustee describes committeeship as a last resort.
• If the dispute is about interpretation or a family disagreement, ask a lawyer about seeking court directions.

Frequently asked questions