COVID-19 Considerations for a Representation Agreement

COVID-19 Considerations for a Representation Agreement

A Representation Agreement is an instrument by which an adult can appoint someone (a “Representative”) to help them make decisions about their health care (e.g. major surgeries and immunizations), their personal care (e.g. diet and living arrangements), and in some cases, their routine financial affairs (e.g. paying bills and disposing of investments). Generally, a Representative can continue to make these types of decisions on behalf of the adult if the adult becomes incapable.

When making (or revising) a Representation Agreement, there are certain additional factors relating to the COVID-19 pandemic that an adult may wish to consider. Examples of these factors include the following:

1. A Representative’s ability to meet with the adult in person.

It may be advisable for an adult to select a Representative that they can meet with in person so that the Representative can make fully informed decisions about the adult’s health and wellbeing. In the current context, however, an adult’s contact with others may be limited. For example, if an adult lives in a care facility, the care facility’s policy may stipulate that the adult can only be visited by a single designated visitor to limit the spread of COVID-19. An adult in this situation may wish to consider naming their designated visitor as their Representative.

2. A Representative’s awareness of the adult’s current wishes and authorization to carry out those wishes.

An adult’s wishes, particularly with respect to health and personal care, may have evolved as a result of the pandemic. For example, the adult may want their Representative to consent to immunization on behalf of the adult if a COVID-19 vaccine becomes available. Moreover, the adult’s instructions with respect to their living arrangements may have changed, including where the adult may wish to reside.

The adult should ensure that their Representative is aware of any such changes to the adult’s wishes. Section 16 of Representation Agreement Act provides that if an adult’s current wishes cannot be determined, or if the Representation Agreement so instructs[1], the Representative should comply with instructions or wishes the adult expressed while capable. It is important, therefore, that the adult communicate their most up-to-date wishes about their care to their Representative.

In addition to communicating their wishes to the Representative, the adult should ensure that their Representation Agreement authorizes the Representative to make the decisions that correspond to those wishes. If the adult would want to receive a COVID-19 vaccine when available, for example, the Representative should be authorized to consent to immunization on the adult’s behalf in case the adult is incapable at the time the vaccine is available.

3. Signing a Representation Agreement via videoconference.

Currently, it is possible to sign a Representation Agreement in front of a lawyer or notary via videoconference in accordance with Ministerial Order No. M162. Ministerial Order No. M162 will remain in effect until the provincial state of emergency ends or is cancelled.

If you have any questions about Representation Agreements, a member of our Wills, Estates + Trusts team would be happy to assist you.

[1] This only applies if the Representative is acting within authority given to the representative under section 9 of the Representation Agreement Act.

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