The main function of representation agreements is to appoint a representative who has the legal authority to make health and personal care decisions on behalf of the adult making the agreement. The agreement might set out any heath care wishes the adult would like honoured. The representative can make these decisions if the adult making the agreement loses the ability to communicate or make these decisions.
- Section 3 of the Representation Agreement Act presumes that every adult is fully capable of managing their affairs and has the ability to make binding agreements. Thus, unless an adult is shown to be incapable, that adult can enter into a representation agreement and name a representative.
- An adult can designate another adult or the Public Trustee as a representative in health care matters. Credit unions and trust companies are only permitted to represent an adult in financial and legal matters.
- A representative is in a fiduciary relationship with the adult. Thus, the representative must act in good faith and exercise the care and skill of a reasonably prudent person, and cannot act outside the scope of authority granted under the representation agreement.
There are two kinds of representation agreements:
- Standard representation agreements
- Enhanced representation agreements
STANDARD REPRESENTATION AGREEMENTS
An adult may enter into a standard representation agreement (described in section 7 of the Representation Agreement Act) even though the adult may be incapable of managing health or personal care or handling legal or financial matters. To determine whether an adult is capable of making such an agreement, all relevant factors must be considered. Examples of such factors include:
- Whether the adult communicates a desire to have a representative decision-maker,
- Whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others,
- Whether the adult is aware of the effect of a representative agreement and its terms, and
- Whether the adult and the representative have a relationship of trust.
In a standard representation agreement, an adult may authorize the representative to make decisions about any or all of the following:
- Personal care, including admission to a care facility if the facility is a family care home, a group home for the mentally handicapped or a mental health boarding home,
- Managing financial affairs,
- Health care decisions, and
- Legal services (other than commencing divorce proceedings).
The representative in a standard representation agreement is not allowed to:
- Refuse health care necessary to preserve life, or
- Physically restrain, move or manage the adult (or authorize another person to do these things) despite the objection of the adult.
ENHANCED REPRESENTATION AGREEMENTS
An enhanced representation agreement (under section 9 of the Representation Agreement Act) allows for an agreement that goes beyond the limited provisions of a standard agreement. It can be as broad or detailed as the adult wishes it to be. Unlike a standard (section 7) agreement, an enhanced (section 9) agreement requires that the adult be capable of understanding the nature and consequences of the agreement.
A representative appointed in an enhanced representation agreement has all the same powers as a representative appointed in a section 7 standard agreement, and in addition, may be authorized to do the following:
- Physically restrain, move or manage the adult, or have the adult physically restrained, moved or managed, when necessary and despite the objections of the adult;
- Give consent, in the circumstances specified in the agreement, to specified kinds of health care, even though the adult is refusing to give consent at the time the health care is provided;
- Refuse consent to specified kinds of health care, including health care necessary to preserve life; and
- Make day-to-day decisions on behalf of the adult, including decisions about diet, dress, employment matters, living environment, applications for licenses and permits, and participation in educational, social, vocational or other activities.
Unless the enhanced agreement expressly provides, a representative must not:
- Interfere with the adult’s religious practices, or
- Arrange for the temporary care and education of the adult’s minor children, or any other persons who are supported by the adult.