Who Can Be a Representative Under a Representation Agreement in BC?

Choosing a representative is one of the most important decisions in planning for a time when you may not be able to make your own decisions. Families often ask who is allowed to take on the role, and what rules apply to the person chosen.

In British Columbia, the Representation Agreement Act sets out who can act, who can witness the agreement, when a monitor is needed and what happens if things go wrong. This article walks through those rules in plain language.

This article covers the law of British Columbia.

Who qualifies to be a representative

A representative must be 19 or older. A person who provides personal care or health care services to the adult for compensation cannot be a representative, and neither can a person who works at a facility where the adult lives and receives care.

There is an exception for family caregivers. The adult's child, parent or spouse may be named as representative even if they are paid to provide personal or health care to the adult.

• Age 19 or older.
• Not a paid care provider, unless the adult's child, parent or spouse.
• Not a person who works at a facility where the adult lives and receives care.

When a monitor is required

If the agreement gives a representative authority over routine financial affairs under section 7(1)(b), it must name a monitor. Without a required monitor, 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.

A monitor must make reasonable efforts to check that the representative is complying with their duties. The monitor may require the representative to produce accounts and records, and must tell the Public Guardian and Trustee if concerns remain.

Who can witness the agreement

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 that witness is a lawyer or a member of the Society of Notaries Public of British Columbia. For a section 7 agreement, the certificates set out in the Representation Agreement Regulation (Forms 1 to 4, as applicable) must also be completed for the agreement to be effective.

What duties the representative takes on

A representative must act honestly and in good faith, use reasonable care and stay within their authority. They must also consult the adult, to the extent reasonable, about the adult's current wishes, and keep the adult's accounts and records separate.

If the adult's wishes are not known, the representative acts on the adult's known beliefs and values, or in the adult's best interests if those are also unknown. Because of these duties, it helps to choose someone who is organized, trustworthy and willing to talk with the adult and family.

When a representative's authority ends, and how to raise concerns

A representation agreement ends on the adult's death, on cancellation by the court, or on the representative's incapacity, resignation or death, among other events. Financial provisions are cancelled automatically on events such as the bankruptcy of the adult or the representative, or the representative's conviction for an offence involving dishonesty.

Any person may object to the Public Guardian and Trustee if there is reason to believe a representative is failing in their duties, the adult lacked capability, or there was undue pressure or abuse. The Public Guardian and Trustee may also investigate on its own initiative, and may then take steps such as appointing a monitor or applying to court.

What to do next

• Make a short list of people you trust and confirm each is 19 or older and not barred as a paid provider.
• Talk with each person about whether they are willing to take on the duties.
• Decide whether the agreement will cover routine financial affairs, and if so whether a monitor is needed.
• Choose witnesses who are not named as a representative or alternate, and who are not the spouse, child or parent of anyone named as either.
• Speak with a lawyer if your situation is unusual, such as a paid family caregiver or several representatives.

Frequently asked questions