Representatives: Planning for Incapacity in the Future

Unfortunately, it’s common that at some point in your life you will require someone else to make decisions on your behalf – whether those decisions are financial, legal or health related. Before an illness or injury renders you incapable, you are able to appoint a decision-maker who can act on your behalf in the event that you lose your capacity to make such decisions. You can appoint a power of attorney to manage financial and legal matters if you become mentally incapable. On the other hand, you can appoint a personal representative to handle health and personal affairs.

Essentially, a personal representative is able to make any health decisions that you can currently make for yourself.  In order to name a representative, you must create a representation agreement. Any mentally capable adult (19 years of age or older in British Columbia) with the testamentary capacity is also able to create a representation agreement. The agreement does not have any impact on the your life unless you become incapacitated at some point in the future. If this happens, the named person will have the authority to make health care and personal care decisions on your behalf. In some cases, representatives can make some financial and legal decisions as well. The Representation Agreement Act specifies two different types of representatives: a limited (section 7) or unlimited (section 9) representative.

Limited (Section 7) Representative

In general, a section 7 representative is one who can make health care decisions that arise in a standard day-to-day scenario. To list a few areas that a section 7 representative could have authority to make decisions on:

• Scheduling minor health related appointments such as cavity fillings or vaccinations;
• Deciding whether to have a surgery or diagnostic procedures involving general aesthetics;
• Any personal care matters; or
• Minor financial and legal matters.

In the representation agreement, the testator can specify what authority they would like to give the representative. An important area where a section 7 representative doesn’t have authority is for significant, potentially life-altering decisions. As an example, a section 7 representative could not choose to stop life-support after a devastating accident, even if chances of survival were low. However, this would be a decision that a section 9 representative could make.

Unlimited (Section 9) Representative

A section 9 representative is given a large amount of authority over the testator and can make nearly any health-related decisions. The rights of a section 9 representative could include:

• The ability to physically move the testator, even when they’re resisting;
• Deciding whether to do a significant medical procedure;
• Moving the testator into a care home facility;
• Making decisions for the people supported by the testator, such as their children;
• Making decisions that a power of attorney could; or
• Handling any matters that a section 7 representative could.

Things to Consider Before Appointing a Section 9 Representative

Before deciding what type of representative you wish to name, you should decide who you are going to appoint. The duties of a personal representative can be significant in some cases and you will want to choose someone who you can trust and who is willing to act on your behalf in your best interests. As such, you will want someone who knows you well and understands your values. In the case of a section 9 representative, they may be in a difficult situation where they must make extremely tough decisions on your behalf. If you’re worried that your representative will not act in ways consistent with your beliefs, you can choose to write a living will or expression of wishes.

If There is No Representative Named

In the case where the testator fails to name a representative before becoming mentally incapable, a committee can be appointed. Anyone can apply to become an incapable person’s committee and the courts will choose someone, with the incapable person’s best interests at the forefront of the decision making process.

For more information on representatives and power of attorneys, visit the Province of BC’s page on incapacity planning, which has the forms for filing a section 7 or section 9 representation agreement.

For estate planning matters, it’s always best to be safe and plan ahead for any unexpected emergencies. It’s a good idea to name a power of attorney and/or personal representative as it can only be beneficial to your estate planning. While there is the option of a committee being appointed after capacity has been lost, a committee application is a long and expensive process that should be avoided when at all possible. If you need help creating a representation agreement, contact an experienced estate lawyer today. We can help you with all of your estate planning needs, ensuring you’re well equipped for any unexpected circumstances.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.