What’s the difference between a Section 7 Representation Agreement and a Section 9 Representation Agreement?

October 7, 2017 1:57 pm Published by Leave your thoughts

Representation Agreements

Representation Agreements require a Lawyer or Notary to draft them, and must be tailored to your needs.

Who can help you

Our BC Notaries would be happy to help you make a Representation Agreement:
Linda Caisley at Kelowna-Downtown
Lawrence E. Stevens Jr. at Kelowna-Enterprise
Debra van Beers at Westbank

Our BC Lawyers would be happy to help you make a Representation Agreement:
Jaime Boyle at Kelowna-Downtown
Daniel K. Lo at Penticton
Keith Martens at Kelowna-Enterprise

Want to make sure someone can help you if you get sick or just need the help?

What are representation agreements?

Representation Agreements are important documents that appoint someone to help you with various tasks. The person who helps you is called your “Representative“.

There are two kinds of Representation Agreements in BC:

Let’s start with the one that is most commonly used – a Section 9 Representation Agreement.

What is a Section 9 Representation Agreement?

A Section 9 Representation Agreement is an agreement that lets you appoint someone to help you with a full range of health care decisions.

Some of the things a person can help you with (or do for you) under a Section 9 Representation Agreement include:

  • deciding where you live, and with whom, including whether you live in a care facility;
  • deciding whether you should work or be retired
  • deciding whether you should participate in various educational, social, vocational or other activities;
  • deciding whether you should have contact or association with someone else;
  • deciding whether you should apply for licences or permits;
  • deciding various day to day decisions, including what you should eat, or wear;
  • giving or refusing consent to health care;
  • physically restrain, move or manage you, or authorize others to do so;

Representation Agreements are powerful and important documents. In some cases, your representative could be able to:

  • give or refuse consent to certain restricted kinds of care (including refusing consent to health care necessary to sustain life)
  • make arrangements for the care or education of your children, pets, or others you support or care for;
  • interfere with your religious affairs

What is a Section 7 Representation Agreement?

A Section 7 Representation Agreement is less commonly used than a Section 9 Representation Agreement.

Generally, a Section 7 Representation Agreement is only used when you cannot make a Section 9 Representation Agreement (usually because you are experiencing challenges with the mental capacity required to make a Power of Attorney for financial affairs, or a Section 9 Representation Agreement).

A Section 7 Representation Agreement (sometimes also called a “Standard Representation Agreement”) gives the person your Representative a standard range of powers over your legal, financial, personal and health care.

What does that mean?

It means your Representative can help you with routine decisions in every area of your life. They cannot help you with more advanced decisions – these usually require a Power of Attorney or a Section 9 Representation Agreement (or both).

If you appoint someone under a Section 7 Representation Agreement, they can help you:

  • deal with your personal care
  • pay your bills
  • help you deal with your income, including pensions
  • buy food, shelter or other services you need for your personal care
  • make investments
  • make a wide range of health care decisions with you or for you
  • deal with your legal affairs (except making a Will or a divorce)
  • accept a facility care proposal for your admission to certain kinds of care facilities

Representatives under Section 7 Representation Agreements cannot:

  • make, or help you make, decisions to refuse health care necessary to preserve life
  • physically restrain, move or manage you (or allow someone else to so so)

Can anyone make a Representation Agreement?

No.

The law that allows us to make Representation Agreements sets out tests for whether you have the mental capacity to make a Representation Agreement.

The tests for capacity are different for each of the different kinds of Representation Agreements. If you have had a significant medical event happen that interferes with your mental capacity, you might not be able to make a Representation Agreement.

Capacity Tests for Section 7 Representation Agreements:

Test of incapability for standard provisions

8 (1) An adult may make a representation agreement consisting of one or more of the standard provisions authorized by section 7 even though the adult is incapable of

(a) making a contract,

(b) managing his or her health care, personal care or legal matters, or

(c) the routine management of his or her financial affairs.

(2) In deciding whether an adult is incapable of making a representation agreement consisting of one or more of the standard provisions authorized by section 7, or of changing or revoking any of those provisions, all relevant factors must be considered, for example:

(a) whether the adult communicates a desire to have a representative make, help make, or stop making decisions;

(b) whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;

(c) whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult;

(d) whether the adult has a relationship with the representative that is characterized by trust.

Capacity tests for Section 9 Representation Agreements:

Test of incapability for non-standard representation agreements

10 An adult may authorize a representative to do any or all of the things referred to in section 9 unless the adult is incapable of understanding the nature and consequences of the proposed agreement.

Who should I ask to be my Representative?

This is an incredibly important role in your life.

The person you pick to help you should be someone:

  • you trust with your life
  • you know will follow your wishes, even if they disagree with your choices
  • who will make sure you are kept safe and properly cared for, even if you aren’t able to care for yourself
  • close enough to you to be able to deal with emergencies
  • be able and willing to keep a record of the work they do for you
  • who understands that they are in a position of trust with you, and honour that role
  • who will keep your personal and medical information private, even when other members of your family are asking for it
  • who will be calm in the face of stress and grief

This seems complicated. I’m not sure which one I need.

This actually can be complicated, and you want to make sure you get good advice as to which document you need.  This little chart might help, but is no substitute for proper legal advice.

If you need someone to: S7 RA S9 RA Power of Attorney
sell real property
pay taxes
pay bills
make minor health care decisions for you
make major health care decisions for you
make controversial health care decisions for you
make experimental health care decisions for you
make end-of-life health care decisions for you
decide where you should live
help look after your minor children
choose diagnostic tools for you (MRIs, CT scans)
help get licences or permits for you
deal with your investments

Why don’t I just make both?

Section 7 and Section 9 Representation Agreements do quite different things.

You only want to make one Representation Agreement at a time – if you make both a Section 7 and a Section 9 Representation Agreement at the same time, they can contradict or even revoke each other, making it very difficult for your family to help you.

Do I need a Representation Agreement? Which one?

That depends on a number of factors. Representation Agreements should be thought about in part as a preventitive tool – you make it clear who speaks for you if you are unable to speak yourself. It gives authourity to someone to make medical decisions on your behalf, saving the time and hassle of a tempotrary substitute decision maker. It could also avoid confusion if loved ones and medical experts aren’t clear or certain on your wishes, your representative can make things easier when emotions run high.

What happens if I don’t have a Representation Agreement?

If you don’t have a Representation Agreement, and you are unable to look after your own affairs, it may be necessary for a family member to ask a judge to appoint a Committee for you. If a judge appoints a committee for you, then you will be stripped of all of your legal rights and you will be declared incapable of managing yourself, your affairs, or both. If this happens, your committee will then be responsible for managing all of your affairs. If there is no friend or family member able to be your committee, then the Public Guardian and Trustee may apply to be your committee.

When you talk to us about getting a Representation Agreement, we’ll discuss with you what your needs are, whether a Power of Attorney is needed as well and if there may be potential issues or conflict between these documents and you Will. When drafting each document, we make sure it correlates to a larger future plan, and does what you want it to do.



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This post was written by Linda Caisley