Power of Attorney or Representation Agreement? Which One You Need in BC (Often Both)

"My spouse has power of attorney, so they can make my medical decisions." We hear some version of this every week, and in British Columbia it is not correct. A power of attorney in BC deals with financial and legal affairs only. Decisions about your health and personal care belong to a different document altogether: the representation agreement.

This article explains what each document does, how each is made, what happens if you have neither, and why the usual answer to "which one do I need?" is both.

Two documents, two different jobs

An enduring power of attorney lets you name someone, called your attorney, to make decisions about your financial affairs: paying bills, managing bank accounts and investments, dealing with your home, filing tax returns. The word "enduring" is the important one. An ordinary power of attorney stops working if you lose capacity; an enduring one is specifically designed to continue despite your incapability, which is the whole point of making it.

A representation agreement lets you name a representative to help make, or to make, decisions about your personal care and health care: medical treatment, where you live, who looks after you day to day. In its standard form it can also cover the routine management of your finances, but it cannot be used for real estate or anything beyond the routine. An attorney under a power of attorney, for their part, has no authority at all over your health or personal care.

The enduring power of attorney, in brief

• What it covers. Anything you could lawfully do through an agent in relation to your financial affairs. Dealing with land requires the document to be prepared and certified in the form the Land Title Office accepts, which is one reason to have it drafted professionally.
• How it is signed. In front of two witnesses, or a single witness if that witness is a lawyer or a BC notary public. The attorney, the attorney's spouse or child, and anyone under 19 cannot act as a witness.
• Who can be your attorney. Almost any adult you trust, with one notable exclusion: someone who provides you with personal care or health care services for payment cannot be appointed.
• What the attorney owes you. The attorney must act honestly and in good faith, in your best interests and within the authority you gave, and must keep records of what they do with your money.
• When it ends. On your death, among other events. People are often surprised that an attorney's authority stops at that moment; from then on it is the executor named in your will who acts.

The representation agreement: section 7 and section 9

Representation agreements come in two forms, named after the sections of the Representation Agreement Act that create them.

A section 7 agreement is the standard version. A representative can be authorised to help with personal care, routine management of financial affairs, major and minor health care, and obtaining legal services. There are firm limits: the representative cannot refuse health care necessary to preserve life, cannot deal with real estate or non-routine finances, and cannot make or change your will. If routine finances are included, a monitor must usually be named to keep an eye on the representative, unless the representative is your spouse or a trust company, credit union or the Public Guardian and Trustee. The section 7 agreement is designed to be available to adults whose capacity is already in question, which is what makes it so useful for families acting late.

A section 9 agreement is the enhanced version. The representative can be authorised to do anything they consider necessary in relation to your personal care or health care, including accepting or refusing life-supporting treatment and deciding where you will live. It requires a higher level of capability to make, and it is the one most people choose when planning ahead while well.

Both forms are signed before two witnesses, or one if the witness is a lawyer or BC notary public, and the representative and their relatives cannot witness.

Why you usually want both

Picture a stroke that leaves someone unable to communicate for several months. The mortgage still has to be paid and the tax return filed; that is the attorney's job. A decision has to be made about rehabilitation and, later, about a care home; that is the representative's job. Neither document can do the other's work, and a family holding only one of them will find itself stuck on half of the decisions.

You can name the same person in both roles or different people. Some families deliberately separate them: the child who is good with money becomes the attorney, the one who lives nearby becomes the representative. Either way, naming an alternate in each document avoids the problem of a sole appointee who is unavailable when needed.

What happens if you have neither

Nothing happens automatically on the financial side. Your spouse or children have no right to operate your accounts or sell your property simply because they are family; someone generally has to apply to the court to be appointed to manage your affairs, a process that is slower, more public and considerably more expensive than signing a document in advance. On the health side, BC law provides a default list of relatives who may be asked to consent to treatment on your behalf, but the person at the top of that list may not be the one you would have chosen, and they have no authority beyond the health decision in front of them.

The third document: an advance directive

An advance directive is a written instruction from you, made while capable, giving or refusing consent to particular health care in advance. It speaks for you directly rather than through a representative, and it is often prepared alongside a representation agreement so the representative knows your wishes. Together with your will, these documents form a complete plan: one for while you are alive and capable, two for while you are alive and not, and one for afterwards.

Put the right documents in place while it is easy

Our wills and estate planning lawyers prepare enduring powers of attorney, representation agreements and advance directives, usually together with a will in a single appointment. If a family member has already lost capacity, we can explain which options remain open.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.