- A section 7 agreement covers a list of permitted activities, while a section 9 agreement covers personal and health care with non-standard powers and not finances.
- The capacity test for section 7 is lower than the test for section 9.
- Section 7 has extra requirements, such as certificates, and a monitor if it gives authority over routine finances.
A representation agreement in British Columbia can be made under section 7 or section 9 of the Representation Agreement Act. The two differ in what they cover and in how much understanding the adult needs in order to sign.
If you are helping a relative with memory loss or a disability, the choice can matter. This article compares the two so you can ask better questions.
This article covers the law of British Columbia.
The two kinds at a glance
| Feature | Section 7 | Section 9 |
|---|---|---|
| Scope | List of permitted activities, including personal care, routine finances, health care and legal services | Personal care and health care with non-standard powers; no finances |
| Capacity test | Adult may sign even if incapable of making a contract or managing routine finances | Adult may sign unless incapable of understanding the nature and consequences of the agreement |
| Monitor | Required if it covers routine finances, with exceptions | Not mentioned for finances, since it does not cover them |
The capacity thresholds
Section 7 sets a lower standard. An adult may make a section 7 agreement even if they are incapable of making a contract, managing their health care, personal care or legal matters, or managing the routine of their financial affairs.
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, shows choices and preferences, knows the representative cares about their well-being, and has a relationship of trust with the representative.
Section 9 sets a higher standard. An adult may make a section 9 agreement unless they are incapable of understanding the nature and consequences of the proposed agreement.
What each one can do
A section 7 agreement may authorize a representative to help make, or make, decisions about personal care, routine financial management, major and minor health care (except prescribed kinds), and obtaining legal services and instructing counsel. Divorce proceedings are excluded. 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.
A section 9 agreement may authorize a representative to do anything the representative considers necessary for the adult's personal care or health care, including deciding where the adult lives and with whom, and consenting to health care.
Even under section 9, a representative cannot consent to certain prescribed kinds of health care, arrange temporary care for the adult's dependants, or interfere with the adult's religious practices unless expressly authorized, subject to the limits in the Act.
Choosing between the two when capacity is limited
Section 9 has the higher capacity test: an adult may make one unless they are incapable of understanding the nature and consequences of the proposed agreement. It can give a representative non-standard authority over personal and health care, such as deciding where the adult lives and with whom.
Section 7 is often the route for an adult whose abilities are more limited, because it can be made even where the adult cannot manage routine finances or make a contract. Section 9 can suit an adult who understands the agreement and wants personal and health care powers beyond the standard list. Whether either is open to a particular person depends on the facts, and a lawyer can help assess it.
Formalities and what to do next
Both kinds must be in writing and signed by the adult before 2 witnesses, or one witness who 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 in the Representation Agreement Regulation (Forms 1 to 4, as applicable) must be completed.
- List the decisions you expect the representative to face: health care, housing, finances.
- Remember that a section 9 agreement does not cover finances, so ask about an enduring power of attorney for that.
- Ask a lawyer how capacity is likely to be viewed in your situation.
- Confirm who will witness and which certificates are needed.
Frequently asked questions
Which agreement has the lower capacity test?
Section 7. An adult may make one even if they cannot make a contract or manage routine finances. Section 9 requires that the adult not be incapable of understanding its nature and consequences.
Can a section 9 agreement cover my finances?
No. It covers personal and health care with non-standard powers and does not cover finances. An enduring power of attorney deals with legal and financial affairs.
Is a monitor always required?
A monitor is required if the agreement gives authority over routine financial affairs, with exceptions such as a spouse, the Public Guardian and Trustee, a trust company or credit union as representative.
Can the court change a representation agreement?
On application, the court may cancel all or part of an agreement or confirm a change or revocation, but it may not override the adult's wishes unless the adult is incapable, the order is in their best interests and reasons are given.
Sources
- Representation Agreement Act, s. 7 — bclaws.gov.bc.ca
- Public Guardian and Trustee of BC – Personal planning tools — trustee.bc.ca
- Government of BC – Incapacity planning — www2.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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