The Act introduces three concepts which are important to keep in mind in the preparation of a Representation Agreement.

1. Although you have been able to arrange for your property affairs to be managed on your behalf in the past by way of an enduring Power of Attorney, the Act introduces the matters of personal care and health care. Now you can enter into a binding agreement with your Representative and specify the kind of personal care and health care you wish to have in the future when you are unable to make decisions yourself. Personal care includes such matters as where and with whom you wish to reside. Health care covers a wide variety of health care issues, including the ability to consent to or refuse health care, including life support care and treatment.

2. The Act allows for two distinct kinds of Representation Agreements to be made, called a Section 7 or "Standard Agreement" and a Section 9 or "Enhanced Agreement."

   An adult may make a "Standard Agreement" even though the adult may have less than full capacity to make a contract or manage his or her affairs if the adult is able to communicate desires, make choices and express preferences. The subject matter of a "Standard Agreement" will be limited by the Act. A "Standard Agreement" may cover matters such as personal care, routine financial matters specified by regulation, certain kinds of health care and the provision of certain kinds of legal services. Under a "Standard Agreement", the Representative will not be able to refuse life supporting care or treatment, nor deal with the adult’s real estate holdings.

   By contrast, an adult who is fully competent to manage his or her affairs may prepare an "Enhanced Agreement." It may be drawn up to cover any specific task or to make any specific decision on the adult’s behalf which is not prohibited by law. It may also be framed to cover personal care, a wide variety of health care directions, financial affairs and the ability to deal in real estate.

3. The Act is designed for the Representative to assist the adult in making decisions. It is not limited to simply making decisions on behalf of the adult. In life, the transition from competency to incompetency rarely occurs overnight but is a process which occurs over a number of years. The Act is intended to be complementary to this process. You may structure the Representation Agreement so that the role of the Representative will be advisory in the first instance with the intent that the Representative will take over the decision-making process entirely as and when you are no longer able to make the decisions independently.

          There are other aspects of the Act which are significant. Here are a few of them.

          You can make the Agreement effective upon signing, or alternatively upon the occurrence of an "event" which you may specify in the Agreement. For example, you may state that the Agreement comes into effect when executed or alternatively when your doctor certifies that you are no longer capable of managing your affairs. However, you must be mindful that if you specify an "event" you make it clear and unequivocal so that third parties will be satisfied that such "event" has occurred.

          Standard Agreements may be prepared by anyone while Enhanced Agreements must be prepared in consultation with lawyers. Standard Agreements must also be prepared in consultation with lawyers if the adult wishes to dispense with the appointment of a Monitor (described below) and the Representative is not the adult’s spouse.

          You may choose as a Representative another adult, the Public Trustee, a credit union, or a trust company. If you choose a credit union or trust company, their representation must be confined to your financial affairs, business or assets and to related legal matters.

          You may have more than one Representative and assign specific areas of authority to them.
          You may also appoint alternate Representatives to act if a Representative is unable to act.

          The proper execution of a Representation Agreement is important. It must be signed by the adult making the Representation Agreement, each Representative, and each alternate Representative. Each signing must be witnessed by two witnesses. Also, for an Enhanced Agreement to be effective for Land Title Act purposes, one of the witnesses to the adult must be a lawyer or notary public or other qualified person under the Land Title Act.

          An adult who is unable to sign because of physical disabilities may direct that the Representation Agreement be signed on his or her behalf.

          The Act also requires that Certificates in a form prescribed by regulation be signed by the Representative, Alternate Representative, the witnesses, the person who is consulted in connection with the preparation of an Enhanced Agreement, and the Monitor.

          The Act states that in a Representation Agreement you must either name someone to act as a Monitor or specifically state that a Monitor is not required. However under a Standard Agreement you must have a Monitor unless the Representative is the adult’s spouse, or the adult consults with a lawyer or notary public, who signs a certificate in the prescribed form.

          The personal duty of a Monitor is to ensure that the Representative complies with his or her duties. The Monitor has certain specific duties of reporting if he or she discovers that the Representative has failed to comply with his or her obligations.

          Interestingly, there is no provision in the Act for the Monitor to receive compensation.

          Under a Standard Agreement the Representative will be limited to making investments authorized for trustees under the Trustee Act, whereas under an Enhanced Agreement a Representative will not be so limited if the Enhanced Agreement is drafted to provide for wider investment powers.

          There are numerous duties and powers imposed upon a Representative, including such things as acting honestly and in good faith, exercising the care, diligence and skill of a reasonably prudent person, and acting within the authority provided in a Representation Agreement. As mentioned previously, an on-going duty of the Representative is the obligation to consult, to the greatest extent possible, with the adult to determine his or her own wishes, and to comply with those wishes if it is possible to do so. Further, if the adult’s wishes cannot be determined or it is not possible to comply with them, the Representative must comply with any instructions or wishes the adult expressed while he or she was capable. The Act even goes one step further and states that if the adult’s instructions or expressed wishes are not known, the Representative must act on the basis of the adult’s known beliefs and values or in the adult’s best interests if his or her beliefs and values are not known.

          A Representative who is authorized to make decisions about an adult’s financial affairs, business activities, or other assets must keep accounting records which segregate the Representative’s assets from the those of the adult and be able to produce those records for inspection and copying at the request of the adult, the Monitor or the Public Trustee.