Representation Agreements and Powers of Attorney - Part 3 of 3 #320

Apr 01, 2000

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By Gerry Neely
B.A. LL.B.

The contents of the representation agreement are yours to decide. With respect to personal, medical and health care decisions, speak to your family, friends and medical professionals. It is particularly important that you speak with your doctor if you have a chronic medical problem. State whether and under what circumstances you may or may not want such life sustaining treatments such as CPR, dialysis, life-saving surgery, life-saving antibiotics, blood transfusions or tube feeding.

The Act adds a further layer of protection against the risk of a dishonest or ineffectual representative by requiring or allowing for the appointment of a monitor to oversee the representative. In the case of the SRA, the appointments can only be waived if the representative is the adult's spouse, or a lawyer has been consulted who provides the same certification as is required for the ERA. If an alternate representative is appointed who is not the spouse, then a monitor must be appointed unless a lawyer's certification is obtained. In the case of the ERA, there is a specific requirement that you must either name a monitor or state that one is not required.

Finally, you and the representative must sign a representation agreement in the presence of two independent witnesses. Where the representation agreement authorizes dealing with real property, one of the witnesses must be a lawyer or notary public who provides the officer's certification now required - for example, for Land Title Office transfers.

Each representative, monitor and witness must file a prescribed certificate in which they agree to accept the duties imposed upon them. The monitor and witnesses must also acknowledge that they have no reason to object to the making of the representation agreement. From the examination of the statutory duties of the representative and monitor, one can conclude that these are not roles to be lightly entered into.

It is possible, and probably desirable, that in some circumstances there will be more than one representation agreement. Separate agreements - concerning financial matters on the one hand and health and personal care matters on the other - mean that financial institutions and government offices, such as the Land Title Office, do not have to read through statements about your health and personal care decisions, which you probably would prefer to remain private. A Registrar of a Land Title Office has suggested that there is merit in having a separate agreement to deal with Land Title Office transactions.

No doubt much of the legislation that has been proclaimed will prove to be beneficial in the long run. In the short run however, we are advising clients to sign an enduring Power of Attorney to deal with the financial affairs and a separate representation agreement for personal and health care decisions. However, if you act by September 5, 2000, and sign an enduring Power of Attorney, you have the advantage of a useful document, which you can replace subsequently if you decide to provide more detailed instructions as to how you want your financial affairs to be handled.

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