Representation Agreements and Powers of Attorney – Part 1 of 3 #318

By Gerry Neely
B.A. LL.B.

If a licensee is asked by a third party to list a property, the first response would be to ask to see that person’s authority to act on behalf of the owner. Before the proclamation of the Representation Agreement Act on February 28, 2000, the licensee could have received proof of that person’s authority in one of three ways:

• by an order made under the Patient’s Property Act, appointing that person as Committee;
• by an enduring Power of Attorney which gave that person the power to act even if the owner became mentally incompetent; or
• by a non-enduring Power of Attorney used for a specific purpose.

After February 28, 2000, which of these powers remain and what has been added? The Patient’s Property Act remains in force, as does the non-enduring Power of Attorney. The weakness of the latter authority is that it becomes void if the person who gave it becomes mentally incompetent. That weakness made the enduring Power of Attorney a useful and valuable tool for people concerned that a subsequent mental incapacity would prevent them from making important financial and legal decisions, including the purchase and sale of real estate on their behalf. Despite its usefulness, the enduring Power of Attorney will only continue to be legally effective if is signed before September 6, 2000.

While a Power of Attorney is adequate to authorize someone to deal with your financial and some legal matters, it does not authorize someone to make personal, medical and other health decisions on your part when circumstances prevent you from doing so. While many people used a Living Will to accomplish this, it had no legal effect.

The Representation Agreement Act is intended to address these and other perceived inadequacies. It provides a structure, and standards and rules within that structure, enabling you to authorize someone to make decisions for you when you are unable to do so. For the incapacitated adult, these standards and rules also provide a measure of protection against abuse of the trust given by you to the representative you appoint.

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