Protect Your Elderly Parents. Lynne Butler
any court involvement whatsoever.
6. Representation Agreements
In British Columbia, Saskatchewan, and the Yukon, it is possible to make written agreements known as Representation Agreements between a dependent adult and one or more trusted friends or relatives who are willing to assist the dependent adult with decision making.
Representation Agreements are different from Health Care Directives in one very important way. A Health Care Directive simply appoints a decision maker who is not the dependent adult. The Representation Agreement appoints someone to make decisions with the dependent adult, not for the dependent adult. In both kinds of documents, the person who helps with decisions is appointed by the dependent adult, but with the Representation Agreement the dependent adult can choose to keep some decision-making ability for himself or herself.
It is not the purpose of this book to give specific instructions on how these agreements are to be made. If, after reading these sections, you believe that this alternative would be helpful to you and your elderly relative, you can either see a lawyer to have the documents prepared or you may seek out a self-help book that specifically addresses the preparation of Representation Agreements.
6.1 Agreements in British Columbia
Representation Agreements in British Columbia are versatile documents that can either authorize a person to help the dependent adult make decisions or authorize a person (known as the representative) to make decisions on his or her own on behalf of the dependent adult. This is the choice of the dependent adult at the time he or she signs the document. The dependent adult has to expressly state in the document what he or she wants the role of the representative to be.
The dependent adult maintains a great deal of control over the document. He or she may give the representative power to make personal- and health-care decisions normally associated with guardianship or to make financial decisions normally associated with trusteeship or both. The dependent adult will identify the areas in which he or she needs assistance. This person can give different people the authority to make different decisions.
The dependent adult may appoint the following as his or her representative:
• The Public Guardian and Trustee.
• A credit union or trust company. This can only be done as long as the decisions made by the credit union or trust company are strictly financial decisions and not personal- or health-related decisions.
• An individual person. If the dependent person appoints an individual, the dependent adult must also appoint a monitor unless the individual appointed was a spouse, or at least two individuals are appointed who must act jointly. The monitor’s job is to ensure that the representative is acting honestly, diligently, and prudently, and is consulting with the dependent adult where possible and is not acting outside his or her authority.
As with the other alternatives to court-appointed guardianship and trusteeship that are discussed in this chapter, the Representation Agreement allows a dependent adult to maintain some control over his or her own affairs. Having an agreement in place is much less intrusive than a court order. The Representation Act of British Columbia specifically says that the law was put into place to avoid the need for court applications to appoint guardians and trustees.
6.2 Co-Decision-Making in Saskatchewan
In Saskatchewan, an elderly person can sign an agreement with another person whereby the person will help the elderly person make decisions. The person selected to give that help is called a co-decision-maker. This is because he or she will help the elderly relative make his or her own decisions as much as possible, rather than stepping in to make all decisions.
The person selected can be a personal co-decision-maker who can assist with health and personal decisions. The person’s job is roughly equivalent to that of a guardian. He or she may also be a property co-decision-maker who can assist with decisions respecting finances and property. This job is roughly equivalent to that of a trustee.
As with the British Columbia Representation Agreements discussed above, the Saskatchewan co-decision-making agreements are specifically allowed by law to avoid the need for guardians and trustees to be appointed by the courts. The agreements allow the elderly relative to maintain some control over decisions that affect him or her.
6.3 Agreements in the Yukon
In the Yukon, there are two kinds of agreements available. One is the Supported Decision-Making Agreement (under Part 1 of the Act) and the other is a Representation Agreement (under Part 2 of the Act). They will be discussed in more detail in the paragraphs below. It is important to know that the Yukon law specifically says that the court should not be asked to appoint full guardians or trustees unless alternatives such as these agreements have been tried or at least carefully considered. Therefore, if you intend to ask the court to appoint you as a guardian or trustee in the Yukon, you are going to have to explain why one of the two types of agreements could not have been used instead.
6.3a Supported Decision-Making Agreement (Yukon)
This arrangement is appropriate where the dependent adult who signs an agreement is not in need of a full guardianship or trusteeship because he or she retains some ability to deal with his or her own affairs, but some help is needed. The person who assists the dependent adult under a Supported Representation Agreement is called an associate decision-maker. You can see from the title given to this person that the agreement is intended to foster co-operative, joint decisions, as opposed to having a guardian or trustee alone make the decisions he or she thinks are appropriate. The associate decision-maker’s duties are to assist the dependent adult in making decisions, expressing decisions, obtaining information, and discussing possible outcomes with the dependent adult.
The associate decision-maker may have the authority to deal with personal and health-care decisions normally associated with guardianship or financial decisions normally associated with trusteeship, or both.
This arrangement is much less intrusive to the dependent adult than a full guardianship or trusteeship. Signing a Supported Decision-Making Agreement would ensure that the dependent adult would retain the ability to make decisions and obtain information, but the assisting person would obtain the legal status to assist the dependent adult.
6.3b Representation Agreement (Yukon)
This kind of agreement is different than the Supported Decision-Making Agreement in that this kind of agreement appoints two or more people to make decisions on behalf of the dependent adult. The people who act under this kind of agreement are called representatives. Although the dependent adult is the one who appoints trusted friends or relatives as his or her representatives, the dependent adult is no longer the one making the decisions once the document is signed.
This kind of document can cover either the personal- and health-care decisions normally associated with guardianship or the financial decisions normally associated with trusteeship, or both. The document can and should be tailored to meet the needs of the dependent adult who is signing it. In this way, a dependent adult who only needs help with a certain kind of transaction, such as banking or investing, is not going to have unwanted help imposed on him or her for things he or she is perfectly capable of doing himself or herself, such as deciding where he or she is going to live.
7. Enduring Power of Attorney
Like the Health Care Directive, an Enduring Power of Attorney is a document that is signed by the elderly relative, usually long before it is actually needed. Note that an Enduring Power of Attorney is different from a regular Power of Attorney that is often used for business and banking. An Enduring Power of Attorney is specifically designed so that it can be used even though the person who signed it has lost his or her mental capacity. In Ontario, it is referred to as a Continuing Power of Attorney for Property and the word continuing