A Representation Agreement (“RA”) is a legal document with allows a person (the “Adult”) to appoint an individual (the “Representative”) to be their decision maker in the future should they need assistance making personal and/or health care decisions. If you have accepted an appointment as Representative, it will be your responsibility to make those kinds of decisions on behalf of the Adult when the Adult becomes incapable of doing so by reason of injury, illness or disability.
If you have been named a Representative and you are not sure what you should do, here are a few tips:
- Discuss with the Adult what their wishes are regarding their health care and personal care. It is important to have these discussions while the Adult is capable, because if the Adult loses capacity, it is your responsibility to relay the Adult’s wishes on his or her behalf. It would be prudent to keep detailed notes about the Adult’s wishes as expressed while the Adult was capable.
- Review the RA in detail to ensure that you fully understand your authority, your restrictions, and the Adult’s wishes and instructions to the extent that they are expressed within the Agreement.
- Ensure that you know where the original RA is stored, and that it is safe.
- Compile a list of the Adult’s health care providers, so that a copy of the RA can be provided to them when it becomes necessary to exercise your authority. It would be helpful for the Adult to provide a copy of the RA to health care providers while still capable of expressing his or her wishes. This way the Adult can make sure that providers understand the document and your role.
- Determine whether or not the Adult has a Power of Attorney. Sit down with the Adult and his or her Attorney so that you all understand the Adult’s wishes as well as the division of responsibility between yourself and the Attorney. This will reduce the risk of disagreement between yourself and the Attorney in the future.
- While the Adult is capable of expressing his or her own personal and health care decisions, make sure he or she is actively involved. You are obligated to comply with the Adult’s wishes and consult directly with him or her.
- Ascertain whether or not the Adult has an Advance Directive and secure a copy of that agreement. An Advance Directive will provide you with further instructions regarding the Adult’s health care and end of life wishes.
- Keep records of the decisions you make and the steps you take in your capacity as Representative. A journal can be a good way to keep notes of relevant dates, conversations, situations and decisions. You are required to produce records for inspection at the request of the Adult, the Adult’s monitor (required under an RA where financial authority is granted), or the Public Guardian and Trustee. Keeping thorough records will protect you from accusations of abuse of authority or negligence.
- Keep good records of your expenses. You are entitled to be reimbursed from the Adult’s assets for any reasonable expenses you incur in performing your duties under the RA.
- Be persistent. Representations Agreements are not as widely recognized as Powers of Attorney, for example, and you have a duty to advocate for the Adult, and for your position as Representative.
- Always ensure that you are observing your overarching responsibility to act honestly and in good faith, and that your actions are within the scope of the authority granted to you in the RA.
- If you are not sure what to do, obtain legal advice.
The above is not meant to be an exhaustive list of your responsibilities as a Representative under a Representation Agreement. If you have any questions, or are considering your own incapacity planning, contact us.