BarTalk April 2000
Volume 12, Number 2

Protecting client interests in the new regime

The Representation Agreement Act is a means by which someone can empower a trusted friend or family member to act on a person’s behalf while that person is still alive. It allows someone to prepare for a time when they might be mentally or physically incapacitated, and ensures that someone will be in a position to communicate and uphold their wishes regarding, for example, care of their body, care of their belongings, and guardianship of their financial assets.

The key to this process, say its proponents, is ease of access. Lawyers involved in this area of the law agree, but they also caution that the broad scope of powers which are covered by a “Section 9” Representation Agreement cover the most sensitive areas of a person’s life, and give someone power over their life at a most vulnerable time. It is essential that good legal counsel be required as part of drafting and authorizing a Section 9 certificate.

Public Guardian and Trustee Jay Chalke has asked Dulcie McCallum, former Child Ombudsman, to review the issue of whether the class of persons who must be consulted in drafting Section 9 certificates should be expanded to include classes other than lawyers. The BC Branch’s Wills and Trusts Sections, Notaries Committee, Solicitor’s Issues Committee, and Executive Task Force on Law and the Elderly have all contributed to submissions to Ms. McCallum and Mr. Chalke calling on the government to uphold its responsibility to protect the public interest by requiring consultation with a lawyer.

BC notaries are aggressively advertising and lobbying to attempt to influence the outcome of the review. The reality is that allowing non-lawyers to authorize a Section 9 certificate does not protect the public’s interest. At best, this would result in a two-tier system where those who have money would always choose to consult a lawyer to protect themselves, and those who choose not to consult a lawyer will be left legally vulnerable. At worst, the poorest and most vulnerable in our society could be further marginalized and exploited in terms of power over their own life.

The government has a responsibility to address the issue of access not from the perspective of removing the protection of adequate legal counsel for all, but by starting with: “How do we make it easier for anyone to access good legal counsel?”. If the government is concerned about financial barriers to accessing legal counsel, it should invest in expanding Legal Aid to cover these agreements. For its part, the Bar and other organizations are working together to support pro bono services and clinics for people in need who are not eligible for Legal Aid.

The CBA is also concerned about the proposed elimination of enduring power of attorney as of September 1, 2000. We have communicated to the Public Guardian and Trustee, and to the Attorney General, our strong recommendation that enduring power of attorney remain a legal option for British Columbians, at least until the Act has been in place long enough for its legal impact to be better understood.

This article was published in the April 2000 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.