Guardians 101: Do I really need to appoint a guardian? Part 2 – Wills and Adult Dependents

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It is for adult dependents to decide for themselves:

  1. whether or not they might need someone with the legal authority to represent or act for them either prior to or after becoming incapable of making their own personal and/or financial decisions and, if so,
  2. who they wish to act as their representative or guardian. These wishes can be outlined in a legal document, such as a “Power of Attorney,” a “Representation Agreement,” or an “Advance Directive”, but usually only after consultation and discussion with the person or persons the adult has chosen to act for them.

With a Power of Attorney, the adult (donor) authorizes the attorney (usually a trusted family member) to act on their behalf in all financial matters. This may be an “enduring” Power of Attorney which would continue to apply even after the donor is no longer competent or capable of making decisions about their finances. However, it can no longer be used after the adult dies. That is when the will takes over.

A Representation Agreement can be what is referred to as a section 7 Representation Agreement or a section 9 Representation Agreement.

Briefly, the section 7 Representation Agreement is for adults who need someone to help them with basic personal decision-making and day-to-day activities including banking, at a time when they are no longer  capable of making a section 9 Representation Agreement.

The section 9 Agreement gives the Representative additional authority to deal with more significant financial and legal matters for the adult. It also sets out in some detail what the adult wishes to happen should they end up in a vegetative, end-of-life or terminal illness type of situation. The adult’s Representative is usually a family member or close friend.

An Advance Directive is a legal document that directs the adult’s health care provider to withhold certain treatment and/or provide other treatment, when the adult is no longer capable of making decisions and whether or not the adult has a Representative.

If none of these legal documents are in place at the time the dependent becomes incapable, a person, usually a family member, can apply to the court for an order that says that the potential dependent is incapable of managing their own personal and financial affairs and that the person applying to court is appointed as the adult’s committee, which is another word for a legal guardian.

However, the court process can often be expensive and confusing for non-lawyers. You may find it helpful to have the support of a lawyer who can help you navigate the process. If you need help or have any questions about this, please contact us.

The Province of BC has produced a useful video on advance care planning in BC.  It should answer many of your more general questions.



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