Representation Agreements
Burnaby Public Library, McGill Branch
4595 Albert Street
Burnaby, BC V5C 2G6
September 12, 2019
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Planning for Your Future
Our Work It Out pages offer in-depth, step-by-step guidance for dealing with a legal problem from start to finish.
Easy-to-read Need to Know pages offer tips and highlights.
Make Your Advance Care Plan: Health Care and Personal Care Decisions
Learn what you can do to ensure your wishes around health care and personal care are always respected.
Prepare an Enhanced Representation Agreement
Learn how to prepare an enhanced representation agreement, and your rights once you have one in place.
Change or End an Enhanced Representation Agreement
Learn about your rights and options for changing or ending this kind of agreement.
Prepare an Advance Directive
Learn how an advance directive can be used and who should consider preparing one.
List Potential Temporary Substitute Decision-Makers
What to consider in identifying who could be temporarily appointed to make a health care decision for you.
Understand Representation Agreements: What's the Right Fit For Me?
Learn about the two types of representation agreements and the differences between them.
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Representation agreements are designed to be used when you aren’t capable of making certain decisions for yourself. There are two types of representation agreements. Learn more about your legal rights and the differences between the two types of agreements.
There are two types of representation agreements
A representation agreement is a legal document. It lets you choose someone to help you make certain decisions — or to make decisions for you — if you’re ever incapable of making those decisions yourself. The person you choose is called your “representative.”
Under the law in BC, there are two kinds of representation agreements:
- standard representation agreements, often called section 7 representation agreements
- enhanced representation agreements, often called section 9 representation agreements
These agreements differ in three ways:
- the standard of legal capability you need to make the agreement
- the kinds of decisions you can get help making
- the extent of power you can give to your representative
Learn more about the differences between the two types of agreements.
You must be legally capable to make an enhanced representation agreement
The law in BC says you’re capable of making an enhanced representation agreement if you can understand the nature and consequences of the proposed agreement. You must understand:
- that you’re giving power to someone else to make decisions for you (or share decision-making with you if possible)
- the kinds of decisions you’re asking your representative to make
- the consequences of giving someone this power
For example, your enhanced representation agreement may allow your representative to refuse life-supporting treatment. You must understand that this might happen and that, consequently, you could die.
“We just adopted a baby girl. We can’t only think about ourselves now. I decided to prepare an enhanced representation agreement. I chose my partner Max to be my representative. I know it’s a big deal to hand that much power over to him. But I can’t think of a better person to make critical medical decisions if something ever happens to me.”
– Benjamin, Vancouver
A standard representation agreement allows a lower legal standard of capability
“Marta is in the early stages of Alzheimer’s. She can still make simple choices like what to eat for lunch. But basic arithmetic confuses her. When her doctor explains medical procedures, she can’t understand. Marta is no longer capable of signing an enhanced representation agreement. But in my opinion, she can sign a standard representation agreement. She can choose someone she trusts to help her make decisions.”
– Oli, Surrey (a notary public)
If you can’t legally make an enhanced representation agreement, you might still be able to make a standard representation agreement.
The law says an adult can make a standard representation agreement even if they’re not capable of any of these things:
- Managing their own health care, personal care or legal matters.
- Handling routine financial affairs.
- Making a contract. A contract is a legal agreement. To make one, you need to understand what you’re agreeing to and what effect it will have on you. You must understand the significance and consequences of what you’re signing.
All relevant factors need to be considered. For example, whether the adult:
- communicates that they want their representative to help them make decisions
- demonstrates choices and preferences
- expresses feelings of approval or disapproval of others
- is aware that the representative may make choices that affect them
- has a relationship of trust with their representative.
Capability shouldn’t be based solely on a diagnosis or IQ. And the law says it cannot be based on the way someone communicates.
There are four kinds of decisions that might be covered
The law sorts decisions covered by representation agreements into four categories:
- Health care entails anything done for a therapeutic, preventive, palliative, diagnostic or cosmetic purpose. Big and small health care decisions are covered. Minor health care includes routine tests, dental and eye work, and medication. Major health care could include major surgery, chemotherapy, dialysis, complex diagnostic tests, or risky treatments.
- Personal care includes diet, dress, social activities, exercise, spiritual matters, as well as where you live and work and who you spend time with.
- Financial affairs include paying bills, dealing with bank accounts and income, applying for benefits, paying taxes, paying off loans, and applying for insurance.
- Legal matters include dealing with legal issues, getting legal advice and services, instructing a lawyer, commencing any legal proceedings on the adult’s behalf (except divorce proceedings).
A comparison: standard versus enhanced powers
Under a standard representation agreement, you can give someone power to make decisions in all four areas: health care, personal care, financial affairs and legal matters (but there are restrictions on what they can do within each area). This is called giving your representative standard powers. For example:
- A representative can help with the routine management of financial affairs. This includes everyday tasks like paying bills and managing bank accounts. The law in BC lists a range of other tasks that are considered routine. But some decisions such as selling or buying a house or taking out a loan are not covered.
- The law excludes certain powers in the personal care and health care categories.
Under an enhanced representation agreement, you can give someone enhanced powers to make decisions. This includes everything that’s covered under the standard powers, plus additional authority. But decision-making only extends to two of the four areas: health care and personal care. For example:
- Under health care, your representative can refuse consent to life-supporting treatment, if you're incapable of making the decision yourself. Or they can consent to specific health care treatments, even if you object to the treatment at the time it's needed, as long as you've spelled this out in your agreeement. These are specifically excluded from the standard powers.
- Under personal care, your representative can consent to your being physically restrained, managed or moved (so you can receive care), even if you object at the time it's needed. You need to be incapable of making the decision for yourself, in order for this to apply.
Who should make a standard representation agreement?
Standard representation agreements are designed for adults who need help now, because they can’t make decisions independently. They may be appropriate for an adult:
- with an intellectual disability,
- who suffered from a traumatic brain injury,
- experiencing age-related mental decline, or
- whose cognitive function is otherwise impaired due to illness or accident.
Standard representation agreements are often used as a last resort by those who are no longer capable of making an enhanced representation agreement.
“My sister suffered a brain injury when her former partner hit her. Her doctors don’t think she’s capable of giving consent to certain medical treatment. So she made a standard representation agreement, appointing me as her representative. With it, I’m able to help keep her finances on track. I can pursue criminal charges against her former partner. I can advocate for the health care that she needs.”
– Randy, Kamloops
You can make a standard representation agreement even while you’re capable of making decisions independently.
“I don’t feel comfortable with the idea of someone refusing life-supporting care for me. Nor do I like the idea of being restrained against my will (even if I would have wanted the health care treatment if I was capable). So I signed a standard representation agreement, instead of an enhanced one.”
– Isobel, West Vancouver
“My financial affairs are simple. I receive a pension, and most of my expenses come straight out of my bank account. This includes room and board at a nursing home. I don’t own real estate. I want someone to help me with my financial affairs in the future. But I can do this with a standard representation agreement.”
– Kelly, Parksville
Who should make an enhanced representation agreement?
This option is appropriate for most legally capable adults who want to have a say in their future health care and personal care. The agreement can be tailored to meet your specific needs.
Enhanced representation agreements don’t cover financial and legal matters. Most legally capable adults prepare an enduring power of attorney to plan for their financial and legal affairs.
The visuals below should help reinforce your understanding of what you’ve just read. The first visual summarizes the level of capability you need in order to prepare each type of agreement. The second visual summarizes what decision-making powers you can choose to give to your representative under each of the two types of agreements.
Understand MOST forms (Medical Orders for Scope of Treatment)
Learn how a MOST form facilitates a conversation with your doctor about your wishes for care.
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“My mother Alexis entered residential care last year. She expressed a general preference to receive medical attention at the care home when possible. The doctor noted this in a MOST form. When Mom got pneumonia, legally, the care home still had to check in with her about whether she wanted to be treated at the hospital. The MOST couldn’t be used as a blanket directive for her care.”
– Jeorge, Vancouver
A MOST — Medical Orders for Scope of Treatment — form is a document used in hospitals, residential care and community care settings. It should be used to facilitate a conversation with your doctor about your values and wishes for care. You may encounter a MOST when you’re chronically ill or near end-of-life, and major health care decisions are looming.
Ideally, the process should begin with an in-depth conversation between you and your doctor. If you have a representative under a representation agreement, they should be included, too. Together, you should focus on what kind of care is right for you. This should be an opportunity to discuss your values and wishes in the context of what's medically appropriate for your situation. Your doctor should complete and sign your MOST.
Here are some important things you should know about your legal rights in relation to MOSTS:
Having a MOST is optional, not required
You can’t be made to have one to receive health care services.
MOST forms should be completed and signed by a doctor
They shouldn’t be completed or signed by you, as the patient.
There’s no law in BC that governs the creation and use of MOST forms
For this reason, they should be used as a guide only.
Legally, MOST forms do not substitute for consent
Remember, a MOST should simply be used as a tool to facilitate a conversation about your wishes for care, at a particular point in time. It should not be used to unilaterally dictate your future care decisions.
So what does this mean for you? Say a medical decision needs to be made. Your doctor or care provider must follow the law of medical consent. Even if you have a MOST, they must ask you directly for your consent to medical treatment. If you’re incapable of giving it, they need to get consent from your substitute decision-maker. Otherwise, they cannot treat you. What’s written in a MOST form should never override this consent process.
If someone else needs to make decisions for you, a MOST may be helpful
If you are not capable of making a health care decision for yourself, someone will have to make the decision for you.
A representative
When making health care decisions for you, the law says your representative under a representation agreement must (in this order):
- Determine and comply with your current wishes, if it’s reasonable to do so.
- Comply with the wishes you expressed when you were capable. If you had a MOST conversation with your doctor when you were capable, what’s written in the MOST should represent “wishes you expressed when capable.” Legally, your representative must consider these wishes, along with other any other wishes or instructions you expressed when capable. For example, you may have written these in an advance care plan or spoken to your representative.
- If your wishes are not known: act based on your known beliefs and values.
- If your beliefs, values and wishes are not known: act in your best interests .
A temporary substitute decision-maker
A temporary substitute decision-maker is a person who will be temporarily appointed to make a specific health care decision for you. They’ll only be called on if you don’t have another authority in place that addresses the health care need. They may be called if you have a representative under a representation agreement who is not available.
When making a decision on your behalf, the decision-maker must consult with you, if possible. The law says they must also follow any wishes or instructions you expressed when you were capable.
How does a MOST fit in here? If you had a MOST conversation with your doctor when you were capable, what’s written in the MOST should represent “wishes you expressed when capable.” The decision-maker should consider these wishes, along with other any other wishes or instructions. You may have expressed in an advance care plan or to them directly.
If your wishes aren’t known, the decision-maker must give or refuse consent based on your best interests. This includes considering your current wishes, and known beliefs and values. It also includes considering the risks and benefits of the proposed health care.
This page has more in-depth coverage of temporary substitute decision-makers.
In an emergency, a MOST may be helpful
The law says that a health care provider may not always need to get your consent to provide you with treatment. This applies in emergency situations, where they need to act swiftly to save your life or prevent serious damage. And it only applies where you’re not able to give direct consent, or your representative under a representation agreement isn’t available.
However, a health care provider can’t provide you with emergency health care that’s contrary to wishes you expressed when you were capable. This would include wishes expressed in a MOST.
Your MOST can be changed
Talk to your doctor if your circumstances or wishes change.
Know your legal rights
We’ve outlined how MOST forms should ideally be used. This may not always be in line with how the form is used by hospitals or other care providers. It’s a good idea to get on the same page as your care providers. If a MOST is created for you, ask them to clearly explain to you how it will be used. You may want to confirm your understanding that it won’t be used as a blanket directive for care. This means that it can’t override the process of seeking consent under the law.
Refer to your local health authority for more information on the use of MOSTs in your area. There may be differences in when and how each form is used, depending on where you receive your care.
