Representation Agreements

A representative (for both S. 7 and 9) may be:

• another adult except the one who provides personal care or health care services to adult for compensation or employee of facility in which adult resides and through which the adult receives personal care or health care services
• Public Guardian and Trustee
• a credit union or trust company as long its area of authority under agreement does not include health care or personal care (only for section 7 agreement)

Section 9 Representation Agreements (also called Non-standard representation agreements) may be made by an adult capable of understanding the nature of authority being given to his or her Representative and effect of giving that authority. In a representation agreement made under this section, an adult may, subject to subsections (2) and (3), authorize his or her representative to (a) do anything that the representative considers necessary in relation to the personal care or health care of the adult, or (b) do one or more things in relation to the personal care or health care of the adult, including any of the following:

• decide where the adult is to live and with whom, including whether the adult should live in a care facility;
• decide whether the adult should work and, if so, the type of work, the employer, and any related matters;
• decide whether the adult should participate in any educational, social, vocational or other activity;
• decide whether the adult should have contact or associate with another person;
• decide whether the adult should apply for any license, permit, approval or other authorization required by law for the performance of an activity;
• make day-to-day decisions on behalf of the adult, including decisions about the diet or dress of the adult;
• give or refuse consent to health care for the adult, including giving or refusing consent, in the circumstances specified in the agreement, to specified kinds of health care, even though the adult refuses to give consent at the time the health care is provided;
• despite any objection of the adult, physically restrain, move and manage the adult and authorize another person to do these things, if necessary to provide personal care or health care to the adult.

Subsection 2 provides that unless expressly provided for in a representation agreement made under section 9, a representative must not

• give or refuse consent on the adult’s behalf to any type of health care prescribed under section 34 (2) (f) of the Health Care (Consent) and Care Facility (Admission) Act,
• make arrangements for the temporary care and education of the adult’s minor children, or any other persons who are cared for or supported by the adult, or
• interfere with the adult’s religious practices.

Additionally, subsection 3 provides that if a representative is given the power to give or refuse consent to health care for the adult, the representative may give or refuse consent to health care necessary to preserve life.

The Agreement must specify what decisions the Representative is empowered to make (may refer to an advance directive for certain decisions) and when it takes effect (date signed or later) and/or identify triggering event. Additionally, it must include full name(s) of and contact information for the Representative(s) and alternates and monitor, if applicable. In case alternate(s) and/or monitor have been appointed, the agreement must specify circumstances in which the alternate will act instead of the Representative.
The Agreement should contain a list of the Representative’s responsibilities and duties, and may contain instructions for adult’s future care or indication that expressed wishes are attached or indication that there is no documented wishes and that Representative is to use judgment to make that decision at the time. It must be in writing and signed and dated by (a) the adult in presence of 2 witnesses, and (b) both witnesses in presence of adult (only one witness required if witness is a lawyer or a notary public).

(a) the adult’s personal care;

(b) routine management of the adult’s financial affairs, including:

• payment of bills,
• receipt and deposit of pension and other income,
• purchases of food, accommodation and other services necessary for personal care, and
• the making of investments;

(c) major health care and minor health care, as defined in the Health Care (Consent) and Care Facility (Admission) Act (“major health care” means (a) major surgery, (b) any treatment involving a general anesthetic, (c) major diagnostic or investigative procedures, or (d) any health care designated by regulation as major health care; whereas “minor health care” means any health care that is not major health care, and includes (a) routine tests to determine if health care is necessary, and (b) routine dental treatment that prevents or treats a condition or injury caused by disease or trauma, for example, (i) cavity fillings and extractions done with or without a local anesthetic, and (ii) oral hygiene inspections), but not including the kinds of health care prescribed under section 34 (2) (f) of that Act (prescribing types of health care for which substitute consent may not be given);

(d) obtaining legal services for the adult and instructing counsel to commence proceedings, except divorce proceedings, or to continue, compromise, defend or settle any legal proceedings on the adult’s behalf.
Additionally, an adult may authorize a representative to accept a facility care proposal under the Health Care (Consent) and Care Facility (Admission) Act for the adult’s admission to a care facility, but only if the facility is

• a family care home,
• a group home for the mentally handicapped, or
• a mental health boarding home.
• Unlike Section 9, a representative may not be authorized under section 7
• to help make, or to make on the adult’s behalf, a decision to refuse health care necessary to preserve life, or
• despite the objection of the adult, to physically restrain, move or manage the adult, or authorize another person to do these things.

Section 7 Agreement must specify when it takes effect (date signed or later) and/or identify triggering event, and may appoint more than one Representative who may act separately, together, or as alternate(s). It must appoint a monitor for financial decisions (optional for health care), but not required for health care or if a Representative is the adult’s spouse or there are two or more Representatives acting unanimously; and it must include full name(s) of and contact information for Representative(s) and alternates and/or monitor. If alternate(s) and/or monitor appointed, the agreement should specify circumstances in which the alternate will act instead of the Representative.

For Section 9 an adult must understand the nature of the authority being given to a Representative and effect of giving that authority.
For Section 7 an adult need not be capable of:

• making a contract;
• managing his/her own health, personal care, legal affairs, or financial affairs.

An adult would normally be considered capable of making a Section 7 Agreement, if he or she:

• is able to communicate a desire to have a representative make, help make, or stop making decisions;
• is able to demonstrate choices and preferences and can express feelings of approval or disapproval of others;
• 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;
• has a relationship with the representative that is characterized by trust.