FAQ’s

You can name anyone you trust to be your attorney. You may choose your spouse, a family member or a close friend. If the person is not an adult, that person cannot act until he or she turns 19. It is important to know that you cannot name someone who is paid to provide personal care or health care services to you. This includes employees working at a facility where you live that provides these services. There is an exception if the attorney you choose is your spouse, child or parent. You may also name a trust company, or a credit union authorized to provide these services. In determining who would be a good attorney for you, consider their ability to be available as well as their knowledge and skills. Caution: Talk to the attorney before proceeding. The attorney you name is not obliged to accept the role. There may be requirements that need to be included in your EPOA. For example, a trust company or credit union will need to ensure the EPOA provides for compensation.

Being an attorney carries many responsibilities. Not only are there duties to you, but there are expectations and legal requirements. Your attorney will be expected to comply with these rules. That means they need to agree to take on the responsibility, and that they have the skills, abilities and time to do what is expected. This becomes especially important if you are no longer capable and cannot oversee what your attorney is doing.

Duties of an attorney include:

• acting honestly and in good faith
• exercising the care, skill and diligence of a reasonably prudent person
• only making decisions the attorney is authorized to make
• investing assets according to rules in the Trustee Act
• keeping your assets separate from the attorney’s assets
• keeping records of your assets and their value, as well as transactions so that an accounting can be created.

Other rules for an attorney include:

• your attorney cannot make or change a will
• there are restrictions on making or changing beneficiary designations
• your attorney can hire agents but cannot delegate decision making to others except to qualified investment specialists

Caution: if you appoint two or more attorneys and one is no longer able to act for any reason, the other attorney can continue to act. This may or may not be what you want. If you want more than one attorney at all times, your EPOA must address this.

Even if you trust someone to comply with the duties and responsibilities, it is always a good idea to discuss your plans with the attorney. If they agree to take on the role should it become necessary, you may want to discuss what is important to you so they know your values and wishes that should guide their decision making if they cannot discuss them with you. You may also want to explain some of the important aspects of your financial affairs and where to locate the information.

The RA will continue until you revoke it or die. Other events that might end it include:

• your representative and any alternates are no longer available or qualified to act
• your marriage or marriage like relationship ends and your representative is your spouse unless your RA says it continues
• a condition you put in your RA occurs
• a Court order ends it.

Your RA may be suspended and your representative cannot act if:

• a monitor is required and the monitor is no longer able or willing to act. If your RA does not provide for an alternate monitor the PGT may be able to appoint one so the representative can continue to act.
• the RA is with respect to managing your routine financial affairs and
• the PGT is appointed committee of your estate under a Certificate of Incapability. Caution: Making a new RA does not automatically revoke a previous RA. If you intend to revoke an existing RA, you need to follow the revocation rules.

You can change or revoke your RA if you are capable. It is your responsibility to ensure that the representative and third parties such as your bank are properly notified of the change or revocation.

Yes, you may want to make more than one RA if you want to keep your instructions and wishes for financial and personal matters separate. Or, you may want to give different people authority to make different decisions. For example, you may want to give authority over your routine financial affairs to someone who is good with financial matters but give someone else authority to make your personal and health care decisions because they are in close contact with you and know your values and wishes.

Caution: Making a new RA for the same area of decision making does not automatically revoke a previous RA. You need to follow the revocation rules.

A monitor is someone who can be appointed in the RA and who has that the power to review the representative to see if the representative is complying with his or her duties. If the monitor has reason to believe that the representative is not complying with the duties and it cannot be resolved, the monitor is expected to inform the PGT.

You can name any adult (someone 19 or older in BC) you trust to be your representative. You may choose your spouse, a family member or a close friend. It is important to know that you cannot name someone who is paid to provide personal care or health care services to you. This includes employees working at a facility in which you live and which provides personal and healthcare services. There is an exception if the representative is your spouse, child or parent. In determining who would be a good representative for you, consider the person’s ability to be available as well as their knowledge and skills.

Caution: Talk to the representative before proceeding. The representative you name is not obliged to accept the role and there may be requirements that need to be included in your RA.

Does the person understand and agree to take on the duties and responsibilities that will be expected of them if a time comes when they must act? These duties include:

• acting honestly and in good faith
• exercising the care, skill and diligence of a reasonably prudent person
• only making decisions that the representative is authorized to make
• consulting with you to determine your current wishes
• keeping records of the decisions made and related information

You may appoint more than one representative in an RA. Unless they have different areas of authority, your representatives must act together unless your RA says otherwise. Each situation is different. It’s your choice to decide what arrangement is practical to carry out your wishes while minimizing the risks to you.

Caution: If you appoint two or more representatives in an RA and one is no longer able to act for any reason, the remaining representative cannot continue to act unless the RA says otherwise. This may or may not be what you want. If you want one representative to be able to continue, your RA must address this.

There is always a possibility that a representative may no longer be able to act or may want to resign. If there is someone else you trust to take over, you may want to name this person as an alternate to act under your RA. Your RA must describe the circumstances when your alternate can start to act.

• If you are having difficulty managing your financial affairs and are not able to make an enduring power of attorney, you may still be able to make a Financial RA7.
• If you want your representative to make both your financial as well as your personal and health care decisions and you only want to make one document, you might want to include powers for the routine management of financial affairs with your RA for personal and health care.

If capable, an adult (someone who is 19 or older in BC) may make an RA with standard provisions. The Representation Agreement Act says that in order to decide if someone is incapable of making an RA7, all relevant factors should be considered including whether:

• the adult communicates a desire to have a representative make decisions
• the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others
• the adult is aware that making the RA means that the representative may make decisions or choices that affect the adult
• the adult has a relationship with the representative that is characterized by trusts

Some examples of “routine” financial management include:

• paying bills
• receiving and depositing income and pensions
• purchasing food, accommodation and other services for your personal care
• making investments according to the Trustee Act
• opening bank accounts
• establishing an RRSP and making contributions
• converting an RRSP to an RRIF or annuity
• applying for benefits you are entitled to
• making payments on loans that you have
• purchasing insurance for your home or motor vehicle
• charitable donations (subject to limits)
• preparing and filing income tax returns
• obtaining legal services and instructing counsel to start proceedings (except divorce) or to continue, settle or defend legal proceedings

The Representation Agreement Act regulation sets out a more detailed list.

A representative under a Financial RA 7 is not permitted to:

• use or renew credit cards or a line of credit
• take out a mortgage on your home
• purchase or sell real estate for you
• guarantee a loan
• lend your personal property or give it away
• revoke or amend a beneficiary designation
• act as a director of a company on your behalf

See the general information on how to make an RA. Caution: In addition to the general requirements for making an RA, a Financial RA7 requires the representative and witnesses to sign prescribed certificates.

• a current list of your assets and liabilities
• accounts and other records
• invoices, bank statements and tax returns required to create a full accounting of the receipts and disbursements

If you are naming a representative and a monitor, it is important that they understand and are willing to undertake their roles and responsibilities. If you are naming two representatives who must act together, it is also important that they understand that they must act together and that they agree to do so. In either case, you may want to discuss your wishes with your representative and monitor so that if they cannot consult with you, they know what you would want.

Representatives and monitors cannot be paid for acting unless:

• the Financial RA7 expressly provides that they can be paid; and
• the Court authorizes the payment. However, a representative and a monitor in a Financial RA7 are entitled to be reimbursed for reasonable expenses.

A representative under a Financial RA7 cannot make gifts with your personal property.
Donations are permitted to registered charities in the following circumstances:

• The donation is consistent with your past practices and your financial means; and
• the total donated in a year does not exceed 3% of your taxable income.

In a Personal/Health Care RA9, you may give your representative authority over anything the representative considers necessary for your personal care, or you can specify what decisions are covered. Some areas of decision making may include:

• living arrangements (including admission to a care facility)
• diet and dress
• participation in educational or vocational activities
• access to personal information
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• a current list of your assets and liabilities
• accounts and other records
• invoices, bank statements and tax returns required to create a full accounting of the receipts and disbursements

Unless the Personal/Health Care RA9 provides for it, a representative may not:

• make arrangements for the temporary care and education of your minor children or someone supported by you
• interfere with your religious practices

• A Personal Health Care RA 9 can also cover major and minor health care. Major health care is defined in the legislation to include:
• major surgery and any treatment that involves a general anesthetic
• major diagnostic or investigative procedures
• radiation therapy
• intravenous chemotherapy
• kidney dialysis
• electroconvulsive therapy
• laser surgery

Minor health care includes:

• routine medical tests
• routine dental treatment such as cavity fillings and extractions that do not require a general anesthetic, and dental care

If you give your representative authority to refuse or consent to health care, with no further instructions, your representative can give or refuse consent to health care necessary to preserve life. You may also authorize someone to physically restrain or move you, despite your objections, if necessary to provide you with health care.

Unless you provide for it in your RA9, your representative cannot consent to a number of invasive and controversial treatments and therapies.

Unless the RA says otherwise, the records that must be kept include:

• copies of any record of your instructions, wishes, beliefs and values
• records of material changes in residence or personal or health care needs and related decisions
• descriptions of health care decisions or admission to a care facility and date
• descriptions of nature and reasons for restricting contact with anyone
• descriptions about any decision to physically restrain or move you, despite objections, and why

If you are naming a representative and a monitor, it is important that they understand and are willing to undertake their roles and responsibilities. If you are naming two representatives who must act together, it is important that they understand that they must act together and that they agree to do so. In either case, you may want to discuss your wishes so that if they cannot consult with you, they know what you would want.

Personal care as defined in the Representation Agreement Act includes things like:

• your diet and dress
• social activities
• visits with family and friends
• where you live

Health care under a Personal/Health Care RA 7 includes major and minor health care. See definitions above. It cannot include the following:

• authority to consent to facility admission
• invasive and controversial treatment or therapies
• refusing treatment that would preserve life

The reasons why you might want to make an advance directive include:

• you do not have anyone you want to name as a representative who can make health care decisions for you
• you may have strong feelings about certain medical treatments and interventions and want your instructions regarding their use or non-use for your health care to be legally binding
• you have a representative, but you do not want the representative to have to make certain decisions

An adult (someone age 19 or older in BC) who is capable of understanding the nature and consequences of the document can make an advance directive. It can be changed or cancelled as long as you are capable of making the change./toggle]

If there is a need for you to have a committee, someone may apply to the Court to declare that you are incapable and ask to be named as your committee.
The applicant is usually someone from the adult’s family. They need to demonstrate that they are willing and appropriate for the responsibilities involved. Sometimes a trust company or the PGT may be appointed.

A nomination is a legal document in which a capable adult nominates a person or persons to be appointed committee for the adult by the court if required in the future. A nomination is signed and witnessed in the same manner as a will.