Representation agreements and enduring powers of attorney are two types of legal documents which allow individuals to plan for the possibility of future incapability.
Representation Agreements and Enduring Powers of Attorney
Representation agreements and enduring powers of attorney are two types of legal documents which allow individuals to plan for the possibility of future incapability. These are tools that allow an individual to name another person to manage their personal and health care needs and financial matters in the event they are not able to do so on their own.
The standard forms published by the Ministry of Attorney General are intended to assist individuals to plan for possible future incapability. The use of these forms is optional. An individual who wants to make a representation agreement or an enduring power of attorney does not need to use these standard forms, but still must make sure that their document complies with the requirements of the legislation.
The standard forms may not be appropriate for use by everyone because they provide only one option of how a representation agreement or enduring power of attorney may be made. For example, these forms provide for the appointment of only one representative or attorney to act at a time. There are also many other options provided in the legislation that are not reflected in these forms: for example, the type of authority that may be given or when the document will come into effect.
Please note that the forms and accompanying notes do not constitute legal advice. For further information, consult the legislation or seek legal advice.
With the Representation Agreement (Section 9) Form an adult may name a representative to do anything that the representative considers necessary in relation to the personal care or health care of the adult.
With the Representation Agreement (Section 7) Form an adult may name a representative to help make decisions, or make decisions on behalf of the adult, with respect to personal care and health care, the routine management of financial affairs and obtaining legal services for the adult and instructing counsel.
In order for a representation agreement (Section 7) to be effective, the following certificates must be completed, as applicable:
- Form 1 (Certificate of Representative or Alternate Representative);
- Form 2 (Certificate of Monitor), if the representation agreement names a monitor;
- Form 3 (Certificate of Person Signing for the Adult), if a person is signing the representation agreement on behalf of the adult;
- Form 4 (Certificate of Witnesses).
These certificates can be found in the Representation Agreement Regulation.
With the Enduring Power of Attorney Form an adult may name an attorney to make decisions on the adult’s behalf in relation to financial affairs and do anything that the adult may lawfully do by an agent (in this case, their attorney) in relation to their financial affairs.
The Health Care (Consent) and Care Facility (Admission) Act was amended to provide for advance directives for health care decision making. An advance directive is a written instruction made by a capable adult that gives or refuses consent to health care in the event that the adult is not capable of giving the instruction at the time the health care is required. There are specific requirements to make a legally effective directive. Please consult the legislation or seek legal advice.
See the link below for more information about incapacity planning options:
- Public Guardian and Trustee guide, It’s Your Choice
- Ministry of Health Guide webpage, Advance Care Planning: Making Your Future Health Care Decisions