What is holding up social innovation in B.C.?

The Representation Agreement Act – innovative legislation calls for innovative practice!

The reason Representation Agreements aren’t better known and more easily used is not because of how the law is written; it is due to lack of education – not just about the law, but also about the practice that Nidus has supported and nurtured for over two decades. Institutions – both private and public – have failed to commit resources to provide this education.

Perhaps it is the fact that the Representation Agreement Act was the result of a community-government partnership, or that the law has been in effect since 2000, but we expect more from professionals and institutions. It is time they informed themselves about Representation Agreements – one of B.C.’s most innovative social policies in the past 20 years!

The Representation Agreement Act was designed to provide an alternative to adult guardianship (Committeeship). This alternative not only supports people with developmental disabilities, but also seniors with dementia.

Given the aging population, it is essential that B.C. utilize the Representation Agreement Act. It provides a simple, accessible tool that enables families and friends to support one another to manage finances as well as health and personal care. It means costs-savings to overburdened systems, including the courts (for Committeeship). Most importantly, it means respect and dignity for the individual.

We often talk about Representation Agreements as B.C.’s best kept secret. One of the problems is that financial institutions and lawyers have not updated their practice to include two key policy changes:

1. Adult guardianship (Committeeship) is the last resort, and
2. A Representation Agreement is based on a different set of principles making it very different from a Power of Attorney. Institutions cannot apply procedures developed for Powers of Attorney to Representation Agreements.

Thankfully, there are some local financial institutions, namely Vancity Credit Union and Prospera Credit Union, who are familiar with Representation Agreements for routine finances.

We also have expert lawyers who were part of the law reform and have insight on the need for the paradigm shift. Based on working with law students who have volunteered at Nidus over the last few years, it seems the new crop of lawyers are more ready to embrace Representation Agreements and their ability to enable self-determination.

But there is still a long way to go as evidenced by the following examples:

On August 15, the CBC Early Edition ran a story about a family in Kelowna who experienced a run-around with their local bank when trying to use a Representation Agreement Section 7 to open a Registered Disability Savings Plan (RDSP). The bank (head office in Toronto) told the family they needed to apply for Committeeship (guardianship). While there is no alternative to guardianship for adults with developmental disabilities in other provinces, this is not the case in B.C. Lots of B.C. families use RA7s for opening RDSPs where the individual cannot act as the Plan Holder. In fact, the federal government is giving other provinces time to come up with an alternative to guardianship like the Representation Agreement.

In a recent enquiry to Nidus, a parent who had helped his son to make a Representation Agreement Section 7 reported feeling unsettled after talking with a lawyer who told them to consider Committeeship as the RA7’s financial authority was too limited.  The father was puzzled by this; he had carefully reviewed the authority for routine management of financial affairs and it met his son’s needs. The father also did not want to resort to Committeeship if it wasn’t necessary because he knew that under Committeeship, his son would lose his rights and legally be considered a non-person.

In its consultation paper reviewing common law tests of capacity, the B.C. Law Institute (BCLI) – a legal academic think tank at UBC – stated that “nominating a committee is a useful personal-planning device, which should be encouraged” (p. 123 or p. 143 of PDF). The paper discusses options for clarifying the test of incapability for Committeeship in B.C.’s legislation and recommends a minor change that, if acted on, would take considerable government resources and require time on the always busy legislative calendar without making a real difference to people’s lives.

Why the attention on adult guardianship when: 1) Committeeship is the last resort in B.C.; 2) nominating a committee is, at best, a way to reaffirm who you appointed in your Representation Agreement and the ‘new’ Enduring Power of Attorney (which is now similar to a Representation Agreement); 3) the United Nations Convention on the Rights of Persons with Disabilities (2008) based Article 12 on the Representation Agreement Act of BC and calls for an end to guardianship.

The BCLI also recommended amending the Representation Agreement Act to make explicit that lawyers can advise clients on and/or draft a Representation Agreement Section 7. This has nothing to do with making Representation Agreements better-known or more accessible, which is the real issue at hand.

We know change takes time and professional groups and traditional institutions tend to hang on to the status quo, but we already have the innovative legislation – now we need innovative practice!

Watch our video (note the Nidus office moved since this was made) – Differences between Representation Agreements and Adult Guardianship.

Read about the History of the Representation Agreement Act – made-in-BC legislation.