Qp Date
This Act has "Not in Force" sections. See the Table of Legislative Changes.

Representation Agreement Act

[RSBC 1996] CHAPTER 405

Contents
Part 1 — Introductory Provisions
1Definitions
2Purpose of this Act
3Presumption of capability
3.1Representation agreement must not be mandatory
Part 2 — Parties, Terms, Formalities and Registration
4Adult may make representation agreement unless incapable
5Representatives
6Alternate representatives
7Standard provisions
8Test of incapability for standard provisions
9Non-standard representation agreements
9.1Duration and exercise of authority
10Test of incapability for non-standard representation agreements
11Decisions not permitted
12Monitors
13Form, signing and witnessing of agreements
14Not in Force. Repealed
15When agreements become effective
Part 3 — Duties, Powers and Liability of Representatives and Monitors
16Duties of representatives
17Power to retain services
18Access to information
19Agreements made by representatives
19.01Representative must not make a will for adult
19.1 Resignation of representatives and alternate representatives
20Duties and powers of monitors
21Replacement or removal of monitors
22Disclosing information
23Liability of representatives
24If authority is exercised when agreement is not effective or valid
25Liability of monitors
26Payment and expenses
Part 4 — Changing, Revoking or Ending Agreements
27Changing or revoking agreements
28Automatic cancellation of financial, business or asset provisions
29When agreements come to an end
Part 5 — Objections, Investigations and Assistance
30Objecting to agreements, changes or revocations
31Investigations by the Public Guardian and Trustee
32Court orders
33Costs of applications to court
34Advice and assistance for representatives
Part 6 — General Provisions
35Legal proceedings
36Agreement does not deprive adult of power to act
37Supreme Court jurisdiction
38Not in Force. Repealed
39Pre-existing agreements
40Not in Force. Repealed
41Extrajurisdictional representation agreements
42Power to make regulations
43Offence
44Spent
44.1Transitional — Adult Guardianship Statutes Amendment Act, 2001
44.2Transitional — financial support provisions in representation agreements
44.3Transitional — non-routine financial provisions in representation agreements
44.4Transitional — regulations
45Commencement

Part 1 — Introductory Provisions

Definitions

1  In this Act:

"adult" means anyone who has reached 19 years of age;

"care facility" has the same meaning as in the Health Care (Consent) and Care Facility (Admission) Act;

"court" means the Supreme Court of British Columbia;

"credit union" means a credit union authorized under the Financial Institutions Act to do trust business;

"health care" has the same meaning as in the Health Care (Consent) and Care Facility (Admission) Act;

"personal care" includes matters respecting

(a) the shelter, employment, diet and dress of an adult,

(b) participation by an adult in social, educational, vocational and other activities,

(c) contact or association by an adult with other persons, and

(d) licences, permits, approvals or other authorizations of an adult to do something;

"registrar" means the person who is designated as the registrar of the representation agreement registry established under section 42 (2) (b);

"representation agreement" means an agreement made under section 7 or 9;

"spouse" means a person who

(a) is married to another person, and is not living separate and apart, within the meaning of the Divorce Act (Canada), from the other person, or

(b) is living with another person in a marriage-like relationship;

"trust company" means a trust company, or extra provincial trust corporation, authorized under the Financial Institutions Act to do trust business.

Purpose of this Act

2  The purpose of this Act is to provide a mechanism

(a) to allow adults to arrange in advance how, when and by whom, decisions about their health care or personal care, the routine management of their financial affairs, or other matters will be made if they become incapable of making decisions independently, and

(b) to avoid the need for the court to appoint someone to help adults make decisions, or someone to make decisions for adults, when they are incapable of making decisions independently.

Presumption of capability

3  (1) Until the contrary is demonstrated, every adult is presumed to be capable of

(a) making, changing or revoking a representation agreement, and

(b) making decisions about personal care, health care and legal matters and about the routine management of the adult's financial affairs.

(2) An adult's way of communicating with others is not grounds for deciding that he or she is incapable of understanding anything referred to in subsection (1).

Representation agreement must not be mandatory

3.1  An adult must not be required to have a representation agreement as a condition of receiving any good or service.

Part 2 — Parties, Terms, Formalities and Registration

Adult may make representation agreement unless incapable

4  An adult may make a representation agreement unless he or she is incapable of doing so.

Representatives

5  (1) An adult who makes a representation agreement may name as his or her representative one or more of the following:

(a) an individual who is 19 years of age or older, other than an individual who

(i)   provides personal care or health care services to the adult for compensation, or

(ii)   is an employee of a facility in which the adult resides and through which the adult receives personal care or health care services;

(b) the Public Guardian and Trustee;

(c) a credit union or trust company as long as the credit union's or trust company's area of authority under the representation agreement does not include health care or personal care.

(1.1) Despite subsection (1) (a), an individual described in subsection (1) (a) (i) or (ii) who is a child, parent or spouse of the adult may be named as a representative.

(2) An adult who names more than one representative in a representation agreement may assign to each of them

(a) a different area of authority, or

(b) all or part of the same area of authority.

(3) If all or part of the same area of authority is assigned under subsection (2) (b) to 2 or more representatives, they must act unanimously in exercising that authority unless the representation agreement provides otherwise.

(4) A representation agreement made under section 7 is invalid unless each representative completes a certificate in the prescribed form.

Alternate representatives

6  (1) An adult who makes a representation agreement may name as an alternate representative any person who qualifies under section 5 (1).

(2) Section 5 (2) to (4) applies to an alternate representative.

(3) If an alternate representative is named, the following must be specified in the agreement:

(a) the circumstances in which the alternate representative is authorized to act in place of the representative, including, for example, if the representative is unwilling to act, dies or is for any other reason unable to act;

(b) any conditions subject to which the alternate representative is authorized to act in place of the representative, including, for example, conditions about the appointment of a monitor.

(4) When acting in place of a representative, the alternate representative is the representative for the purposes of this Act and any other Act.

(5) [Not in force. Repealed 2006-33-2.]

Standard provisions

7  (1) In a representation agreement made under this section, an adult may authorize his or her representative to help the adult make decisions, or to make decisions on behalf of the adult, about any or all of the following:

(a) the adult's personal care;

(b) routine management of the adult's financial affairs, including, subject to the regulations,

(i)   payment of bills,

(ii)   receipt and deposit of pension and other income,

(iii)   purchases of food, accommodation and other services necessary for personal care, and

(iv)   the making of investments;

(c) major health care and minor health care, as defined in the Health Care (Consent) and Care Facility (Admission) Act, but not including the kinds of health care prescribed under section 34 (2) (f) of that Act;

(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.

(2) An adult may authorize a representative under subsection (1) (a) 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) a family care home,

(b) a group home for the mentally handicapped, or

(c) a mental health boarding home.

(2.1) A representative may not be authorized under this section

(a) to help make, or to make on the adult's behalf, a decision to refuse health care necessary to preserve life, or

(b) despite the objection of the adult, to physically restrain, move or manage the adult, or authorize another person to do these things.

(3) [Repealed 2001-2-29.]

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.

Non-standard representation agreements

9  (1) 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:

(i)   decide where the adult is to live and with whom, including whether the adult should live in a care facility;

(ii)   decide whether the adult should work and, if so, the type of work, the employer, and any related matters;

(iii)   decide whether the adult should participate in any educational, social, vocational or other activity;

(iv)   decide whether the adult should have contact or associate with another person;

(v)   decide whether the adult should apply for any licence, permit, approval or other authorization required by law for the performance of an activity;

(vi)   make day-to-day decisions on behalf of the adult, including decisions about the diet or dress of the adult;

(vii)   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;

(viii)   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.

(2) Unless expressly provided for in a representation agreement made under this section, a representative must not

(a) 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,

(b) 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

(c) interfere with the adult's religious practices.

(3) In a representation agreement made under this section, if a representative is provided 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.

Duration and exercise of authority

9.1  Any authority given to a representative under section 7 or 9

(a) is not terminated solely because the adult subsequently becomes incapable of making a representation agreement giving that authority to a representative,

(b) is subject to any conditions or restrictions placed on that authority in the representation agreement, and

(c) must be exercised in accordance with this Act and any other enactment.

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.

Decisions not permitted

11  (1) Despite sections 7 (1) (c) and 9, an adult may not authorize a representative to refuse consent to

(a) the adult's admission to a designated facility under section 22, 28, 29, 30 or 42 of the Mental Health Act,

(b) the provision of professional services, care or treatment under the Mental Health Act if the adult is detained in a designated facility under section 22, 28, 29, 30 or 42 of that Act, or

(c) the provision of professional services, care or treatment under the Mental Health Act if the adult is released on leave or transferred to an approved home under section 37 or 38 of that Act.

(2) A representative must not consent to the provision of professional services, care or treatment to the adult for the purposes of sterilization for non-therapeutic purposes.

Monitors

12  (1) An adult who makes a representation agreement containing a provision authorized by section 7 (1) (b) must name as monitor in that agreement an individual who meets the requirements of subsection (4) unless

(a) the representative named by the adult is the adult's spouse, the Public Guardian and Trustee, a trust company or a credit union, or

(b) the adult has assigned authority under section 7 (1) (b) to 2 or more representatives and they are required to act unanimously in exercising all authority assigned under that section,

(c) [Repealed 2007-34-51.]

(2) Failure to name a monitor in a representation agreement for which a monitor is required under subsection (1) makes a provision authorized by section 7 (1) (b) invalid.

(3) An adult who is not required under subsection (1) to name a monitor may choose to name as a monitor in a representation agreement an individual who meets the requirements of subsection (4).

(4) To be named in a representation agreement as a monitor, an individual must be at least 19 years of age and must be willing and able to perform the duties and to exercise the powers of a monitor.

(5) An individual named in a representation agreement as a monitor must complete a monitor's certificate in the prescribed form.

(6) A monitor may resign by giving written notice to the adult, each representative and each alternate representative, if any.

(7) The resignation of a monitor is effective

(a) as soon as written notice has been given to all persons entitled to notice under subsection (6), or

(b) on a later date specified in the written notice.

(8) If a monitor resigns, dies, becomes incapable or becomes for any other reason unable to act as monitor, the authority given to each representative by the representation agreement is suspended until

(a) a new monitor is appointed under section 21, or

(b) the court determines under section 21 that a monitor is not required.

(9) Subsection (8) does not apply if

(a) the monitor was chosen under subsection (3), and

(b) the representation agreement provides that the authority of each representative is not suspended in the circumstances described in subsection (8).

Form, signing and witnessing of agreements

13  (1) A representation agreement must be in writing.

(1.1) For the purposes of this Act, a representation agreement is executed when the following requirements are met:

(a) the agreement is signed and witnessed in accordance with this section;

(b) all certificates required under this section and sections 5, 6 and 12 are completed.

(2) A representation agreement must be signed by the adult and

(a) if the representation agreement appoints more than one representative and the representatives must act jointly, each representative,

(b) if the representation agreement appoints only one representative, that representative, or

(c) if the representation agreement appoints more than one representative but each may act independently, at least one representative.

(2.1) Before a person may exercise the authority of a representative granted in a representation agreement, the person must sign the representation agreement.

(3) The persons referred to in subsection (2) need not be present together when they sign the representation agreement and any one or more of them may sign it in counterpart.

(3.01) Subject to subsection (3.02), the adult's signature must be witnessed by 2 witnesses each of whom must sign the representation agreement.

(3.02) Only one witness is required if that witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia.

(3.03) The signature of a representative or alternate representative need not be witnessed.

(3.1) [Repealed 2007-34-52.]

(4) A representation agreement may be signed on behalf of the adult who wants to be represented if

(a) the adult is physically incapable of signing the agreement,

(b) the adult is present and directs that the agreement be signed,

(c) the person signing the agreement is an adult who is not named as a representative or alternate representative in the agreement and is not a witness to the agreement,

(c.1) the signature of the person signing the agreement is witnessed in accordance with subsection (3.01) or (3.02) as though that signature were the adult's signature, and

(d) in the case of a representation agreement made under section 7, the person signing the agreement and each witness complete a certificate in the prescribed form.

(5) The following persons must not act as a witness to the signing of a representation agreement:

(a) a person named in the representation agreement as a representative or alternate representative;

(b) a spouse, child or parent of a person named in the representation agreement as a representative or an alternative representative;

(b.1) an employee or agent of a person named in the representation agreement as a representative or alternative representative, unless the person named as a representative or an alternative representative is

(i)   a lawyer,

(ii)   a member in good standing of the Society of Notaries Public of British Columbia,

(iii)   the Public Guardian and Trustee, or

(iv)   a financial institution authorized to carry on trust business under the Financial Institutions Act;

(c) a person who is not an adult;

(d) a person who does not understand the type of communication used by the adult, unless the person receives interpretive assistance to understand that type of communication.

(5.1) [Repealed 2007-34-52.]

(6) A witness to a representation agreement made under section 7 must complete a certificate in the prescribed form.

(7) If there is a defect in the execution of a representation agreement, a person named in the agreement as a representative may apply to the court for an order under section 32 (4) that the agreement is not invalid solely because of the defect.

Not in Force. Repealed

14  [Not in force. Repealed 2006-33-2.]

When agreements become effective

15  (1) A representation agreement becomes effective on the date it is executed unless the agreement provides that it, or a provision of it, becomes effective later

(a) [Not in force. Repealed 2006-33-2.]

(b) when an event occurs.

(2) If the representation agreement provides that it, or a provision of it, is to become effective when an event occurs, the agreement must specify how the event is to be confirmed and by whom.

(3) [Not in force. Repealed 2006-33-2.]

Part 3 — Duties, Powers and Liability of Representatives and Monitors

Duties of representatives

16  (1) A representative must

(a) act honestly and in good faith,

(b) exercise the care, diligence and skill of a reasonably prudent person, and

(c) act within the authority given in the representation agreement.

(2) When helping the adult to make decisions or when making decisions on behalf of the adult, a representative must

(a) consult, to the extent reasonable, with the adult to determine his or her current wishes, and

(b) comply with those wishes if it is reasonable to do so.

(2.1) Subsection (2) does not apply if

(a) a representative is acting within authority given to the representative under section 9, and

(b) the representation agreement provides that in exercising that authority the representative need only comply with any instructions or wishes the adult expressed while capable.

(3) If subsection (2) applies but the adult's current wishes cannot be determined or it is not reasonable to comply with them, the representative must comply with any instructions or wishes the adult expressed while capable.

(4) If the adult's instructions or expressed wishes are not known, the representative must act

(a) on the basis of the adult's known beliefs and values, or

(b) in the adult's best interests, if his or her beliefs and values are not known.

(5) On application by a representative, the court may exempt the representative from the duty under subsection (3) to comply with any instructions or wishes the adult expressed while he or she was capable.

(6) Subject to subsection (6.1), a representative may not delegate any authority given to the representative in the representation agreement.

(6.1) A representative may delegate to a qualified investment specialist, including a mutual fund manager, all or part of the representative's authority with respect to investment matters.

(7) If a representative makes health care decisions on behalf of an adult and the representative must, under subsection (4) (b) of this section, act in the adult's best interests, section 19 (3) of the Health Care (Consent) and Care Facility (Admission) Act applies.

(8) A representative must

(a) keep accounts and other records concerning the exercise of the representative's authority under the representation agreement, and

(b) produce the accounts and other records for inspection and copying at the request of any or all of the following:

(i)   the adult;

(ii)   the adult's monitor;

(iii)   the Public Guardian and Trustee.

(9) A representative who is authorized to do anything referred to in section 7 (1) (b) must keep the adult's assets separate from the representative's assets.

(10) Unless the representation agreement provides otherwise, subsection (9) does not apply to assets that

(a) are owned by the adult and the representative as joint tenants, or

(b) have been substituted for, or derived from, assets that were owned by the adult and the representative as joint tenants.

(11) [Not in force. Repealed 2006-33-2.]

(12) A person who, on the death of an adult, will be or might be a beneficiary of the adult's estate does not, for that reason, have a conflict of interest with the adult.

Power to retain services

17  An adult's representative may retain the services of a qualified person to assist the representative in doing anything the adult has authorized the representative to do.

Access to information

18  (1) A representative may request information and records respecting the adult for whom the representative is acting, if the information or records relate to

(a) the incapability of the adult, or

(b) an area of authority granted to the representative.

(2) A representative has the same right to information and records described under subsection (1) as does the adult for whom the representative is acting.

Agreements made by representatives

19  An agreement made, or anything undertaken, by a representative on behalf of an adult is binding on the adult, even after the representative no longer has authority under the representation agreement.

Representative must not make a will for adult

19.01  A representative must not make or change a will for the adult for whom the representative is acting, and any will or change that is made for an adult by his or her representative has no force or effect.

Resignation of representatives and alternate representatives

19.1  (1) A representative or alternate representative may resign by giving written notice to

(a) the adult,

(b) all other representatives and alternate representatives named in the representation agreement, and

(c) the monitor, if any.

(2) The resignation of a representative or alternate representative is effective

(a) as soon as written notice has been given to all persons entitled to notice under subsection (1), or

(b) on a later date specified in the written notice.

Duties and powers of monitors

20  (1) A monitor named by or appointed for an adult must make reasonable efforts to determine whether a representative of the adult is complying with section 16.

(2) At any reasonable time, the monitor may visit and speak with the adult.

(3) Anyone having custody or control of the adult must not hinder the monitor from visiting or speaking with the adult.

(4) If the monitor has reason to believe that a representative is not complying with section 16, the monitor

(a) may require the representative to

(i)   produce accounts and other records required to be kept under this Act, and

(ii)   report to the monitor on the matters specified by the monitor, and

(b) must notify the adult, the representative and all other representatives, including alternate representatives, of the monitor's reason for the belief.

(4.1) Subsection (4) (a) (i) does not limit a monitor's authority to request accounts and other records under section 16 (8).

(5) If after taking steps under subsection (4) the monitor still has reason to believe the representative is not complying with section 16, the monitor must promptly inform the Public Guardian and Trustee.

(6) [Repealed 2001-2-40.]

Replacement or removal of monitors

21  (1) On request by a representative or other interested person, the Public Guardian and Trustee may appoint a monitor to replace one named in a representation agreement or appointed under this section or section 30 (3) (g.1), if

(a) the monitor is unsuitable or is no longer able to act, or has ceased to act, as monitor, and

(b) the adult is incapable of making a new representation agreement.

(2) If the Public Guardian and Trustee declines to appoint a monitor under subsection (1) or if a representative or other interested person is dissatisfied with the Public Guardian and Trustee's decision, the court, on application by a representative or other interested person, may do one or more of the following:

(a) determine that a monitor is not required;

(b) confirm, vary or reverse the Public Guardian and Trustee's decision;

(c) make any decision that the Public Guardian and Trustee could have made in the first instance.

(3) If a monitor is appointed by the Public Guardian and Trustee or the court under this section, the Public Guardian and Trustee or the court, as the case may be, may

(a) authorize that the monitor be remunerated, out of the adult's assets, for acting as a monitor in relation to authority given to a representative under section 7 (1) (a), (b) or (d), and

(b) set the amount or rate of the remuneration.

(4) Subsection (3) applies even if the representation agreement does not provide for the remuneration of a monitor.

Disclosing information

22  A representative or a monitor must not disclose information or records obtained in the exercise of his or her authority except to the extent necessary

(a) to perform his or her duties,

(b) for the purposes of an investigation of the Public Guardian and Trustee under section 30 (3) (a) or 31, or

(c) to make an application to, or comply with an order of, the court.

Liability of representatives

23  (1) A representative who complies with section 16 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.

(2) [Not in force. Repealed 2006-33-2.]

If authority is exercised when agreement is not effective or valid

24  (1) If a representative who acts within the authority given in a representation agreement does not know, and could not reasonably have known, that the agreement, or a provision of it, is not in effect or is invalid, the representative

(a) is deemed to have had authority to act, and

(b) is not liable for acting without authority.

(2) If a representation agreement or a provision of it is not in effect or is invalid, any exercise of the authority given to a representative by the agreement is valid and binding in favour of a person who did not know and had no reason to believe that the agreement or provision was not in effect or was invalid.

Liability of monitors

25  A monitor is not liable for any act or failure to act of a representative if the monitor

(a) acts honestly and in good faith, and

(b) exercises the care, diligence and skill of a reasonably prudent person.

Payment and expenses

26  (1) A person named in a representation agreement as a representative, alternate representative or monitor is not entitled to be remunerated for acting as a representative or monitor except if

(a) a provision of the representation agreement expressly authorizes and sets the amount or rate of the remuneration,

(b) the provision authorizing the remuneration is not void under subsection (1.1), and

(c) the court, on application by the person named in the representation agreement as a representative, alternate representative or monitor, authorized that the remuneration be paid.

(1.1) A representation agreement may not authorize the remuneration of a representative, alternate representative or monitor for any decision made or action taken by the adult, representative, alternate representative or monitor under Part 2 of the Health Care (Consent) and Care Facility (Admission) Act, and any provision of a representation agreement that purports to authorize such remuneration is void to that extent.

(1.2) Subsection (1) (c) does not apply if

(a) the representative or alternate representative is the Public Guardian and Trustee, and

(b) the remuneration is in accordance with a regulation made under the Public Guardian and Trustee Act.

(2) A person is entitled to be reimbursed from an adult's assets for reasonable expenses properly incurred in performing the duties or exercising the powers of the adult's representative or monitor.

Part 4 — Changing, Revoking or Ending Agreements

Changing or revoking agreements

27  (1) An adult who has a representative may change or revoke the representation agreement at any time if

(a) the adult is capable of making the agreement,

(b) in the case of a change, an amendment to the agreement is executed in accordance with the procedures for executing a representation agreement,

(c) any criteria for change or revocation that are set out in the agreement are met, and

(d) in the case of a revocation, written notice of the revocation is given to

(i)   each representative,

(ii)   each alternate representative, and

(iii)   the monitor, if any.

(2) [Not in force. Repealed 2006-33-2.]

(3) [Not in force. Repealed 2001-2-50.]

(3.1) The revocation of a representation agreement becomes effective

(a) as soon as written notice has been given to all persons entitled to notice under subsection (1) (d), or

(b) on a later date specified in the written notice.

(4) [Not in force. Repealed 2001-2-50.]

Automatic cancellation of financial, business or asset provisions

28  (1) A provision of a representation agreement by which an adult authorizes a representative to do anything referred to in section 7 (1) (b) is cancelled

(a) on the bankruptcy of the adult or the representative or on the appointment of a receiver for the adult,

(b) on the conviction of the representative for an offence involving dishonesty,

(c) if the representative is a credit union or trust company, on the dissolution or winding up of the credit union or trust company or on it ceasing to carry on business, or

(d) as provided in section 19.1 (3) (b) of the Patients Property Act.

(2) [Not in force. Repealed 2006-33-2.]

When agreements come to an end

29  (1) A representation agreement ends as follows:

(a) on the death of the adult who made the agreement;

(b) [Not in force. Repealed 2006-33-2.]

(c) on the court cancelling the agreement under section 32 (1);

(d) if the adult who made the agreement and the adult's representative are spouses, on the termination of their marriage or marriage-like relationship;

(e) on the representative becoming incapable;

(f) on the resignation or death of the representative;

(g) on the effective date of the revocation of the agreement under section 27;

(h) as provided in section 19 of the Patients Property Act.

(1.1) Subsection (1) (d) does not apply if the representation agreement provides that it does not end in the event of the termination of the marriage or marriage-like relationship, as the case may be.

(1.2) For the purposes of subsections (1) (d) and (1.1), a marriage is terminated on the earliest date that

(a) an agreement under the Family Law Act is made between the spouses after separation,

(b) a judgment granting a divorce of the spouses is made, or

(c) an order is made declaring the marriage of the spouses to be null and void.

(2) Subsection (1) (d) to (f) does not apply if

(a) more than one representative is named in the representation agreement and the agreement provides that the remaining representative or representatives may continue to act, or

(b) an alternate representative is named in the agreement and is willing and able to act as representative.

(3) [Not in force. Repealed 2006-33-2.]

Part 5 — Objections, Investigations and Assistance

Objecting to agreements, changes or revocations

30  (1) Any person may make an objection to the Public Guardian and Trustee if there is a reason to believe that

(a) an adult is, or was at the time, incapable of making, changing or revoking a representation agreement,

(b) fraud, undue pressure or some other form of abuse or neglect is being or was used to induce an adult to make, change or revoke a representation agreement,

(c) the making, use or revocation of a representation agreement or a change to a representation agreement is clearly inconsistent with the current wishes, values, beliefs or best interests of the adult who made, revoked or changed the agreement,

(d) there is an error in a representation agreement or an error was made in executing, witnessing or registering the agreement,

(e) anything improper has occurred in the making, use or revocation of a representation agreement,

(f) [Not in force. Repealed 2006-33-2.]

(g) a representative is not qualified under section 5 (1),

(h) a representative is

(i)   abusing or neglecting the adult for whom the representative is acting,

(ii)   failing to follow the instructions in the representation agreement,

(iii)   incapable of acting as representative, or

(iv)   otherwise failing to comply with the representation agreement or the duties of a representative,

(i) a representative has given or proposes to give consent to health care that is not authorized by the representation agreement, or

(j) any criteria specified in the representation agreement as grounds for objection have been met.

(2) [Not in force. Repealed 2006-33-2.]

(3) On receiving notice of an objection, the Public Guardian and Trustee must promptly review the objection and may do one or more of the following:

(a) conduct an investigation to determine the validity of the objection and then advise the objector of the outcome;

(b) to (d) [Not in force. Repealed 2006-33-2.]

(e) apply to the court for an order confirming a change to, or the revocation of, a representation agreement, or for an order cancelling all or part of a representation agreement;

(e.1) apply to the court for an order that a representation agreement is not invalid solely because of a defect in the execution of the agreement;

(f) recommend that someone else apply to the court for an order referred to in paragraph (d), (e) or (e.1);

(g) make a report under section 46 of the Adult Guardianship Act;

(g.1) appoint a monitor;

(g.2) authorize that a monitor appointed under paragraph (g.1) be remunerated, out of the adult's assets, for acting as a monitor in relation to authority given to a representative under section 7 (1) (a), (b) or (d) and set the amount or rate of the remuneration;

(h) take any other action that the Public Guardian and Trustee considers necessary.

Investigations by the Public Guardian and Trustee

31  (1) The Public Guardian and Trustee may conduct an investigation without receiving a notice of objection under section 30 if he or she is of the opinion that there are grounds for objection under section 30 (1).

(2) In conducting an investigation under subsection (1), the Public Guardian and Trustee may exercise the powers given in section 17 of the Public Guardian and Trustee Act.

(3) After conducting an investigation, the Public Guardian and Trustee may do anything referred to in section 30 (3) (b) to (h).

Court orders

32  (1) On application under section 30 (3) (e) or (f), the court may make an order confirming a change to, or the revocation of, a representation agreement or an order cancelling all or part of a representation agreement.

(2) When making an order under subsection (1), the court must consider, in the same order of priority as under section 16 (2) to (4), the wishes, instructions, values and beliefs of the adult who made the representation agreement.

(3) The court may not make an order that overrides the adult's wishes, instructions, values or beliefs unless

(a) the adult is incapable,

(b) the order is in the adult's best interests, and

(c) the court gives reasons for making the order.

(4) On application under section 13 (7) or 30 (3) (e.1) or (f), the court may order that a representation agreement is not invalid solely because of a defect in the execution of the agreement.

Costs of applications to court

33  The costs of an application to court under this Act are in the discretion of the court and the court may order that all or part of those costs be paid from the assets of the adult who has or wants to have a representative.

Advice and assistance for representatives

34  (1) A representative who is uncertain about the nature and scope of the representative's authority, or who needs advice about anything else relating to the role of representative, may ask the Public Guardian and Trustee for guidance.

(2) On application by a representative, the court may give directions or give an opinion about the interpretation of a provision of a representation agreement.

Part 6 — General Provisions

Legal proceedings

35  (1) A representative who is authorized under this Act to instruct a lawyer to commence, continue, defend or settle a proceeding on behalf of an adult while the adult is incapable is the adult's litigation guardian for the purposes of that proceeding, unless the court orders otherwise.

(2) to (5) [Not in force. Repealed 2006-33-2.]

Agreement does not deprive adult of power to act

36  An adult who is capable may do anything that he or she has authorized a representative to do.

Supreme Court jurisdiction

37  Nothing in this Act

(a) limits the inherent jurisdiction of the Supreme Court to act in a parens patriae capacity, or

(b) deprives a person of the right to ask the court to exercise that jurisdiction.

Not in Force. Repealed

38  [Not in force. Repealed 2006-33-2.]

Pre-existing agreements

39  An agreement that

(a) was made before this Act authorized the making of a representation agreement, and

(b) would have been a valid representation agreement if, at the time the agreement was made, this Act had authorized the making of a representation agreement,

is valid and is deemed for all purposes to have been made under this Act.

Not in Force. Repealed

40  [Not in force. Repealed 2006-33-2.]

Extrajurisdictional representation agreements

41  Subject to any limitation or condition set out in the regulations, an agreement that

(a) performs the function of a representation agreement,

(b) was made in a jurisdiction outside British Columbia, and

(c) complies with any prescribed requirements

is deemed to be a representation agreement made under this Act.

Power to make regulations

42  (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) [Repealed 2007-34-64.]

(a.1) respecting what constitutes "routine management of the adult's financial affairs" for the purposes of section 7 (1) (b), including regulations

(i)   limiting, by type or monetary amount, or

(ii)   modifying or supplementing

the matters listed in section 7 (1) (b) (i) to (iv);

(a.2) respecting accounts and other records that must be kept by a representative, including the form and content of those records;

(a.3) respecting any notice required or authorized under this Act;

(b) to (g) [Not in force. Repealed 2006-33-2.]

(g.1) defining any word or expression used but not defined in this Act;

(h) [Not in force. Repealed 2006-33-2.]

(3) The minister may publish one or more forms of representation agreement, but their use is optional.

(4) The Lieutenant Governor in Council may make regulations respecting extrajurisdictional representation agreements for the purposes of section 41, including

(a) limiting the application of section 41 according to

(i)   the jurisdiction in which the extrajurisdictional representation agreement was made, or

(ii)   the manner in which the extrajurisdictional representation agreement was made or signed,

(b) respecting conditions or limitations on the operation of the extrajurisdictional representation agreement,

(c) respecting the exercise of powers or performance of duties by a person authorized to act in respect of the extrajurisdictional representation agreement,

(d) respecting the application of any provision of this Act or the regulations to a person acting in respect of the extrajurisdictional representation agreement,

(e) prescribing circumstances in which section 41 does not apply, or ceases to apply, and

(f) deeming extrajurisdictional representation agreements to be agreements made under section 7 or 9 of this Act.

Offence

43  Section 5 of the Offence Act does not apply to this Act or the regulations.

Spent

44  [Spent. R.S.B.C. 1996 (Supp)-405-44.]

Transitional — Adult Guardianship Statutes Amendment Act, 2001

44.1  A representation agreement that

(a) was made at any time before the date on which section 35 of the Adult Guardianship Statutes Amendment Act, 2001 comes into force, that date being September 1, 2001, and

(b) would be validly executed in accordance with the requirements of section 13 of this Act as amended by section 35 of the Adult Guardianship Statutes Amendment Act, 2001 had the agreement been executed on or after that date,

is deemed to have been validly executed as if section 35 of the Adult Guardianship Statutes Amendment Act, 2001 were in force at the time the agreement was executed.

Transitional — financial support provisions in representation agreements

44.2  If a representation agreement made before the repeal, on September 1, 2011, of section 9 (1) (f) of the Representation Agreement Act by the Adult Guardianship and Planning Statutes Amendment Act, 2007 authorized a representative to make financial support arrangements as described in that paragraph on an adult's behalf, the representative may continue to exercise that authority as described in the representation agreement.

Transitional — non-routine financial provisions in representation agreements

44.3  (1) In this section:

"powers of an attorney" means the power to do, on an adult's behalf, anything that can be done by an attorney acting under a power of attorney;

"representation agreement" means a representation agreement made before the repeal, on September 1, 2011, of section 9 (1) (g) of the Representation Agreement Act by the Adult Guardianship and Planning Statutes Amendment Act, 2007.

(2) If a representation agreement authorizes a representative to exercise the powers of an attorney,

(a) the representative

(i)   may continue to exercise the powers of an attorney as described in the representation agreement, and

(ii)   for these purposes is deemed to be an attorney under the Power of Attorney Act,

(b) that part of the representation agreement that authorizes the representative to exercise the powers of an attorney is deemed to be an enduring power of attorney under Part 2 of the Power of Attorney Act, and

(c) despite the repeal of section 9 (1) (g) of the Representation Agreement Act, a monitor appointed under that Act for the purposes of monitoring the representative's exercise of the powers of an attorney continues to have all of the powers, and must continue to exercise all of the duties, of a monitor under that Act as it read before the repeal.

Transitional — regulations

44.4  (1) The Lieutenant Governor in Council may make regulations the Lieutenant Governor in Council considers necessary or advisable to facilitate the application of this Act, as amended by the Adult Guardianship and Planning Statutes Amendment Act, 2007, to representation agreements made before this section comes into force.

(2) The authority to make or amend a regulation under subsection (1), but not the authority to repeal a regulation under subsection (1), ends 3 years after the date on which subsection (1) comes into force.

Commencement

45  This Act comes into force by regulation of the Lieutenant Governor in Council.