Rep 7s, a way to grant authority with diminished capacity
- Explaining what a Section 7 Representation Agreement is, the minimal capacity required to make one, and built-in protections against abuse.
Too late for your parent to appoint you under a Power of Attorney because they’ve lost their cognitive capacity? It might not be too late for a “Rep-7”.
Rep-7 is Social Worker lingo for a special type of Representation Agreement.
I know that because I gave a presentation to Social Workers at the Vernon Jubilee Hospital recently and Rep-7s were a topic of discussion.
It beats the heck out of the cumbersome way I have been referring to it: “Section 7 Representation Agreement”.
The Representation Agreement Act in BC (the “Act”) provides for two types of representation agreements. One of them is authorized by section 7 of the Act and the other by section 9.
Rep-9s are the more common. Rep-9s are like Powers of Attorney, but for health and personal care decisions. I’ve written about Powers of Attorney and Rep-9s in previous columns, though I didn’t use that cool lingo. Let me know if you have trouble finding them and I’ll send you links.
There are two very cool things about a Rep-7.
One is that it incorporates aspects of a Power of Attorney as well as aspects of a Rep-9 into the same agreement.
Powers of Attorney cannot grant authority for health and personal care decisions. Rep-9s cannot grant authority for financial transactions and decisions.
Rep-7 can grant both.
The other cool thing is that the person granting authority under a Rep-7 can do so with very limited cognitive capacity.
Section 8 of the Act states that a person may make a Rep-7 “…even though the adult is incapable of making a contract, incapable of managing the adult’s health care, personal care or legal matters, or incapable of the routine management of the adult’s financial affairs.”
Section 8 goes on to state that all relevant factors must be considered when deciding whether an adult has the capacity to make a Rep-7 and gives some examples.
The first example is “whether the adult communicates a desire to have a representative make, help make, or stop making decisions.”
The second is “whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others.”
Third is “whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult”.
Finally, “whether the adult has a relationship with the representative that is characterized by trust.”
A Rep-7 is an alternative to the expensive process of applying to the court to have a representative called a “committee” appointed.
A key reason I was invited to speak to the Social Workers was to address questions and concerns about how to prevent patients from being taken advantage of.
Easy to imagine a ne’er-do-well swooping in to take advantage of a senior with dementia, taking control of their financial affairs. Especially since there are freely available forms of Rep-7 available online and the Act doesn’t require a lawyer to be involved.
There are a couple of safeguards built into the Act.
One is that the scope of authority is restricted.
A Power of Attorney can grant an insane amount of authority to the appointed “attorney” representative related to financial affairs. A Rep-9 can as well, as related to health and personal care.
A Rep-7 authority is limited to a person’s personal care, the routine management of financial affairs, a restricted scope of health care which does not include life and death decisions and instructing a lawyer about legal proceedings – but not divorce proceedings.
Another safeguard is that there must either be more than one representative named or a monitor appointed. The Act requires a monitor to make reasonable efforts to determine that the appointed representative is complying with several duties which include acting honestly and in good faith.
There is a further safeguard in practice. Family members who have helped their loved ones make Rep-7s on their own have reported to the Social Workers I met with that the documents have not been accepted by banks. My hopeful expectation is that a properly prepared Rep-7 that has been prepared by a lawyer would be, there being an added layer of comfort because lawyers are cautious about and screen for undue influence.
Next week I plan on writing about what can be done if you fear that a person with dementia is being taken advantage of by a representative, whether that representative has been appointed by a Rep-7, Rep-9, or a Power of Attorney.
