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Representation Agreement (British Columbia)

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British Columbia | Representation Agreement

I am pleased to announce that the Power of Attorney Wizard can now be used to create a Representation Agreement for individuals in British Columbia:

Now you can create your own Last Will and Testament using the Will-O-Matic Wizard, and your own Power of Attorney for Property / Finances and a Representation Agreement using the Power of Attorney Wizard as well!

If you’d like to know more about Representation Agreements in British Columbia …keep reading… This is the third blog on this topic. You can read the first blog here and the second blog here.

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, you should seek professional assistance.

Is there a standard form Representation Agreement?

No.

Is a lawyer required?

The Representation Agreement Act does NOT require that a lawyer prepare or help you complete a Representation Agreement.  That said, if you have a complicated situation, it may be worthwhile to engage a lawyer to prepare a Representation Agreement for you.  If you are worried that someone may challenge in the future your mental capacity to make the Representation Agreement, you should also consult a lawyer.  They will know how to legally address this situation (e.g. by getting a medical report confirming your capacity at the time you make the Representation Agreement) to reduce the risk of future challenges.

When does a Representation Agreement take effect?

A Representation Agreement becomes effective on the date it is executed (signed and witnessed by all parties) UNLESS the Representation Agreement provides that it becomes effective later when an event occurs: section 15(1) of the Representation Agreement Act.  If the Representation Agreement provides that it becomes effective when an event occurs, the agreement must specify how the event is to be confirmed and by whom.

How can a Adult revoke a Representation Agreement?

Pursuant to Section 27 of the Representation Agreement Act, an Adult can revoke a Representation Agreement at any time after making it if:

  • the Adult is capable of making the Representation Agreement;
  • you write out your notice of revocation; and
  • written notice of the revocation is given to each representative, alternate representative and monitor    (if any).

There is no legal requirement that you have your notice of revocation.  A copy of the revocation can be sent by registered mail to the person’s last known address, with an employee of their business, via fax (if they provided you with a fax number), or by leaving it with them or an adult who appears to reside with them at their address.

How can a Representation Agreement cease to have effect?

Pursuant to section 29 of the Representation Agreement Act, a Representation Agreement ends as follows:

  • on the death of the Adult who made the agreement (in which case, their Last Will and Testament takes effect);
  • on the court cancelling the agreement under the Representation Agreement Act;
  • if the Adult who made the agreement and the Adult’s representative are spouses, on the termination of their marriage or marriage-like relationship (unless the Representation Agreement provides otherwise);
  • on the Representative becoming incapable (unless an alternate representative is named in the Representation Agreement and willing and able to act);
  • on the resignation or death of the Representative (unless an alternate representative is named in the Representation Agreement and willing and able to act);
  • on the effective date of the revocation of the Representation Agreement under section 27; or
  • as provided in section 19 of the Patients Property Act.

Do you have to deposit your Representation Agreement somewhere?

There is no requirement that you deposit your Representation Agreement in any specific place.   With respect to what an Adult should do with the Representation Agreement itself, it is best to leave it in a secure place (e.g. fireproof safe, with a trusted third party) and let your Representative know where it is (or give him or her a copy).  Instead of making additional original versions of the Representation Agreement, it is best to make one version and then have a lawyer notarize a true copy of that original.

What happens when I die?

The Representation Agreement only has effect while the Adult is alive.  When the Adult dies, their Will (if they have one) or British Columbia’s intestate laws (if they do not have a Will) will govern the final disposition of their property.

Representative’s Duty, Authority, and Limitations

Pursuant to section  of the Representation Agreement Act, before exercising their authority, the Representative MUST first sign the Representative Agreement: section 13(2.1) of the Representation Agreement Act.

Section 16 of the Act deals with the duties, powers, and liability of Representatives.   Among other things, a Representative MUST:

  • act honestly and in good faith
  • exercise the care, diligence, and skill of a reasonably prudent person
  • act within the authority given in the representation agreement
  • consult (to the extent reasonable) with the adult to determine his or her wishes when helping the Adult to make decisions or when making decisions on behalf of the Adult (unless the Representative is   acting within the authority given under a Section 9 Representation Agreement and the Representation Agreement provides that the Representative need only comply with any instructions or wishes the adult expressed while capable)
  • if the Adult’s instructions or expressed wishes are NOT now, then the Representative must act on the basis of the Adult’s known beliefs and values OR in the Adult’s best interests (if the Adult’s beliefs and values are not known)
  • keep accounts and other records concerning the exercise of the representative’s authority under the representation agreement
  • keep the Adult’s assets separate from their own
  • the Representative may, pursuant to Section 17 of the Act, retain the services of a qualified person to assist them in doing anything the Adult has authorized the Representative to do.

Pursuant to section 18 of the Act, a Representative has the right to request information and records respecting the Adult if the information or records relate to the incapability of the adult or an area of authority granted to the Representative.

Importantly, the Representative must NOT make or change a Will for the Adult: section 19.01 of the Act.

Liability of the Representative

Section 23 of the Representation Agreement Act says that a Representative who complies with section 16 (see above) of the Act is not liable for injury to or death of the Adult or for loss or damage arising from the routine management of the Adult’s financial affairs.

written by pmmpa \\ tags: , , ,

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