D'Amico Family Wealth Management Group Of RBC Dominion Securities
Presents
Elisabeth Evans-Olders, Senior Manager & Will & Estate Advisor, The Royal Trust Company
and
Marilyn Piccini Roy, RSS Lawyers “Power, Money, Sex and Drugs: Perspectives on Elder Law Today”
Angelo D’Amico Christiana Kavadas Dario Falso Celina Toia, LL.B FCSI, CIM, CPA, CMA, CGA, CSWP B. Comm. Associate Bachelors of Law Vice President - Portfolio Manager Associate Tel: (514) 878-5049 Marketing Consultant Tel: (514) 878-5196 Tel: (514) 878-5056 Email: [email protected] [email protected] Email: [email protected] Email: [email protected]
Web : http://www.damicofamilywealthmanagementgroup.ca
November 9th, 2016
Power, Money, Sex and Drugs: Perspectives on Elder Law Today
Mtre. Marilyn Piccini Roy, AD.E., TEP Partner, Robinson Sheppard Shapiro, S.E.N.C.R.L.
Mtre. Elisabeth Evans-Olders, LL.B., TEP Senior Manager, Will and Estate Advisor, RBC Wealth Management, Estate & Trust Services
Introduction
Power: diminished capacity and capacity planning
Money: use and abuse of financial POAs & protection mandates, other types of financial abuse
Sex: predatory marriages
Drugs: end-of-life decisions
3 Demographics
Some information from the February 19, 2016 report from Statistics Canada entitled Canadian Demographics at a Glance, Second edition:
July 1, 2013: approximately 5.4 million people aged 65 and over, representing a record proportion of the population, at 15.3%. The proportion of seniors is expected to exceed the proportion of children in 2017, with a subsequent widening of the gap.
4 What is capacity as a legal concept?
No definition in the Civil Code of Québec except “a person of full age who is incapable of caring for himself or herself or of administering property, by reason, in particular, of illness, deficiency or debility due to age which impairs the person’s mental faculties or physical ability to express his or her will.” (art. 258 CCQ)
All adults are presumed capable of making their own financial decisions except where the law states otherwise.
Capacity to exercise civil rights is evaluated based on a person’s comprehension of the consequences and nature of the transaction they wish to perform.
5 Capacity Planning: the Protection Mandate
Formal requirements:
a) The Protection Mandate must be a notarial deed or executed before two witnesses who have no interest in the act and who can ascertain (from a layperson’s perspective) whether the mandator is competent; and
b) The mandate will only take effect once the Superior Court issues an order recognizing the incapacity and the validity of the mandate. Notaries also have jurisdiction to homologate the mandate. It is important to obtain a copy of the court order or Notarial minutes and the protection mandate in order to take instructions from the mandatary.
6 Advantages of the protection mandate
You will have determined ahead of time: Who will be authorized to make financial decisions on your behalf What kind of decisions can be made (i.e.: what powers of administration have been conferred on the mandataries) Power to gift or care for dependants The number of mandataries who will act on your behalf (jointly or separately) The procedure to replace a mandatary What remuneration, if any, the mandataries will be entitled to
With this type of mandate you can also provide instructions for your medical and/or personal care
7 The protection mandate (cont’d)
According to the Public Curator, only 42% of Quebecers have a protection mandate
Free download from the Public Curator’s website: http://www.curateur.gouv.qc.ca/cura/en/outils/publications/mon_ mandat.html Caution: we recommend seeking professional help to ensure that all formal legal requirements are respected, for example proper choice of witnesses.
Registration of the protection mandate
8 The absence of capacity planning: Protective Supervision
Level of protection: the Superior Court can appoint a curator, a tutor, or an advisor. A meeting of at least five members of the incapable persons’ relatives and friends must appoint a three- person “tutorship council” which will suggest to the Court who should be named Concurrent jurisdiction of Notaries and the Superior Court
9 Protective Supervision (cont’d)
Protective supervision is reviewed every three years (tutorship or advisor) or every five years (curatorship) unless the court fixes an earlier date. The judgment may also be reviewed on judicial request at any time. It is important to obtain a copy of the judgment. There are over 34,000 Quebecers under protective supervision (according to the Public Curator). A registry is kept by the Public Curator, and is accessible at: https://www.curateur.gouv.qc.ca/registre/pcurateur_man_html/criteres .jsp
10 Bill 96 (introduced June 7, 2016)
Loi modifiant le Code civil, le Code de procédure civile et la Loi sur le curateur public en matière de protection des personnes
Introduced by Sébastien Proulx, Family Minister, to revise existing legislation regarding protective supervision with a view to encouraging the family and friends of adults requiring supervision to accept the office of tutor, curator or mandatary and to simplify the procedure in this area.
11 Obligation to report incapacity
If a person of full age is receiving care or services from a health or social services establishment, the executive director of the health or social services institution must report his/her incapacity to the Public Curator.
If the person regains capacity, the executive director also has an obligation to report it.
12 Obligation to report (cont’d)
The Commission des droits de la personnne et des droits de la jeunesse has an obligation to report to the Public Curator any case it becomes aware of where protective supervision is required.
The Public Curator will only act as curator or tutor as a last resort.
13 Consequences of ignoring the capacity issue?
Nullity of juridical acts entered into by a person without legal capacity
14 Financial abuse
The fastest growing crime of the 21st century: Mickey Rooney Brooke Astor Liliane Bettencourt Harper Lee Dionne quintuplet Financial Literacy Against Financial Abuse Jane Rooney, Financial Literacy Leader Financial Consumer Agency of Canada
15 Types of financial abuse or exploitation
Pressuring a senior to sell or gift property No interest loans Stealing money or personal effects Pressuring a senior to execute legal documents Misusing a POA or mandate in case of incapacity: this can include refusal to pay for the care of the senior in order to “preserve an inheritance” Receiving a gift or bequest (if you are the owner, director or employee of a health or social services establishment)
16 Criminal Code
Theft by person holding power of attorney 331. Every one commits theft who, being entrusted, whether solely or jointly with another person, with a power of attorney for the sale, mortgage, pledge or other disposition of real or personal property, fraudulently sells, mortgages, pledges or otherwise disposes of the property or any part of it, or fraudulently converts the proceeds of a sale, mortgage, pledge or other disposition of the property, or any part of the proceeds, to a purpose other than that for which he was entrusted by the power of attorney. Misappropriation of money held under direction 332. (1) Every one commits theft who, having received, either solely or jointly with another person, money or valuable security or a power of attorney for the sale of real or personal property, with a direction that the money or a part of it, or the proceeds or a part of the proceeds of the security or the property shall be applied to a purpose or paid to a person specified in the direction, fraudulently and contrary to the direction applies to any other purpose or pays to any other person the money or proceeds or any part of it.
17 Charter of human rights and freedoms
4. Every person has a right to the safeguard of his dignity, honour and reputation.
48. Every aged person and every handicapped person has a right to protection against any form of exploitation. Such a person also has a right to the protection and security that must be provided to him by his family or the persons acting in their stead.
49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.
18
Charter (cont’d)
74. Any person who believes he has been the victim of a violation of rights that is within the sphere of investigation of the commission may file a complaint with the commission. If several persons believe they have suffered a violation of their rights in similar circumstances, they may form a group to file a complaint. Every complaint must be made in writing. A complaint may be filed on behalf of a victim or group of victims by any organization dedicated to the defence of human rights and freedoms or to the welfare of a group of persons. The written consent of the victim or victims is required except in the case of exploitation of aged persons or handicapped persons contemplated by the first paragraph of section 48.
19 Exploitation
Legal definition of exploitation: 1. Profit-making 2. From a position of authority 3. To the detriment of the interests of a vulnerable person
Exploitation can only be established after an evaluation of the disequilibrium between the two parties, on a case-by-case basis.
20 Examples
Québec (Commission des droits de la personne et des droits de la jeunesse) v. Courchesne, EYB 2013-228827 (Tribunal des droits de la personne) Owner of a senior’s residence took advantage of an 84 year old resident suffering from Alzheimers to extract nearly $12,000 from him. Judge ordered the reimbursement of the “gift” and payment of moral and punitive damages in the amount of $3,000.
Tremblay c. Gagné, EYB 2005-94532 (C.S.) (appeal dismissed) A doctor convinced his patient to “loan” him just over $86,000 and to move into a “senior’s home” that he had bought, at which she was the only resident. Judge ordered the reimbursement of the “loan” and payment of moral damages in the amount of $5,000
21
From La Presse online
Publié le 20 avril 2015 à 06h00 La vieille dame qui s'enfuyait avec sa marchette
« Un matin de janvier l'an dernier, Veronika Piela se rend compte que son argent a disparu de la banque. Son demi-million était entre les mains d'un avocat. Elle avait une «mandataire» qui se prétendait sa nièce. Un médecin affirmait qu'elle était alzheimer. Il ne restait plus qu'à la sortir de son appartement pour l'enfermer. Histoire d'un cauchemar éveillé... »
« Selon la Dre Catherine Ferrier de l'Hôpital général, qui a fait passer tous les tests à Veronika Piela: «Voici une dame de 89 ans qui a une cognition normale», écrit-elle dans un rapport déposé à la cour. Elle a même une «excellente mémoire», peut prendre des décisions pour elle-même et gérer ses affaires, conclut-elle. »
22 Predatory marriage – a form of exploitation and abuse
Where one party marries a person with diminished reasoning ability (typically an older person) purely for financial profit Property entitlements resulting from marriage or intestacy Difficult to prove that the marriage was predatory in nature. What is “capacity to marry”? Inheritance impatience Perils of joint accounts
23 Collin-Evanoff v. Cadieux, 1988 CanLII 524 (QC CA)
Rosario Cadieux died at age 76 after undergoing surgery for colon cancer He had signed a will only 3 months before his death and a marriage contract (with his erstwhile paid caregiver) only 21 days before his death His siblings, who had been disinherited in the will (which was in favour of the caregiver) attacked the validity of both documents on the grounds of incapacity and undue influence The Superior Court granted their action, it was upheld by the Court of Appeal
24 Bill 115 (introduced October 19, 2016)
An Act To Combat Maltreatment Of Seniors And Other Persons Of Full Age In Vulnerable Situations
Introduced by Francine Charbonneau, Minister Responsible for Seniors and Anti-Bullying to facilitate the reporting of maltreatment and to promote the establishment of an intervention process with respect to maltreatment of seniors.
25 Advance medical directives in Case of Incapacity to Consent to Care
Written expression, in advance, of your acceptance or refusal of certain types of medical care Binding on medical professionals and your family Situations in which advance medical directives can be used: End of life and suffering from serious and incurable disease; Irreversible comatose or permanent vegetative state; or Advance dementia with no possibility of improvement (severely diminished cognitive functioning)
26 Advance medical directives (cont’d)
Types of care you can accept or refuse: Cardio-pulmonary resuscitation Mechanical ventilation Dialysis Forced or artificial feeding or hydration Not to be confused with medical aid in dying (which cannot be consented to in advance) Refusing care will not prevent palliative comfort care from being administered
27 Advance medical directives (cont’d)
Formal requirements Notarial deed Form available online from the Régie de l’assurance maladie Québec signed before two witnesses Registration on the Advance Medical Directives Register (operated by RAMQ) or it can be included in your medical file by your doctor The directives can be revoked or modified at any time while you are capable
28 From BBC news online (October 26, 2016)
Canadian nurse charged with eight murders A 49-year-old nursing home worker in Ontario has been charged with eight counts of first-degree murder spanning several years.
Elizabeth Tracey Mae Wettlaufer of Woodstock, Ontario, appeared in court on Tuesday morning.
The victims were residents in two long-term care facilities where Ms Wettlaufer worked and were between 75 and 96 years old.
Police said seven of the victims were given a fatal dose of a drug.
The victims were five women and three men and were all residents of Caressant Care in Woodstock and Meadow Park in London, Ontario.
29 Medical aid in dying
Definition: “medical aid in dying” means care consisting in the administration by a physician of medications or substances to an end-of-life patient, at the patient’s request, in order to relieve their suffering by hastening death.
30 Medical aid in dying (cont’d)
26. Only a patient who meets all of the following criteria may obtain medical aid in dying: (1) be an insured person within the meaning of the Health Insurance Act (chapter A- 29); (2) be of full age and capable of giving consent to care; (3) be at the end of life; (4) suffer from a serious and incurable illness; (5) be in an advanced state of irreversible decline in capability; and (6) experience constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable. The patient must request medical aid in dying themselves, in a free and informed manner, by means of the form prescribed by the Minister. The form must be dated and signed by the patient. The form must be signed in the presence of and countersigned by a health or social services professional; if the professional is not the attending physician, the signed form is to be given by the professional to the attending physician.
31 Medical aid in dying (cont’d)
Physician asked to administer medical aid in dying must: Confirm the patient’s wish by consulting members of the care team and family of the patient (if he or she wishes) amongst other requirements set out in the Act Obtain a written second opinion from another physician Administer the medical aid in dying to the patient personally and take care of and stay with the patient until death ensues
32 A Practical Guide to Elder Abuse and Neglect Law in Canada – Canadian Centre for Elder Law, A Division of the British Columbia Law Institute (July 2011) – an excerpt
http://yourlegalrights.on.ca/resource/83067
2. Responding to Elder Abuse and Neglect: Guiding Principles The following principles are meant to help professionals and volunteers understand and effectively respond to the rights of older adults who are abused, neglected or at risk:
1. Talk to the older adult Ask questions. Talk to the older person about his or her experience. Help the person to identify resources that could be helpful.
2. Respect personal values Respect the personal values, priorities, goals and lifestyle choices of an older adult. Identify support networks and solutions that suit the older adult’s individuality.
33 (cont’d)
3. Recognize the right to make decisions Mentally capable older adults have the right to make decisions, including choices others might consider risky or unwise.
4. Seek consent or permission In most situations, you should get consent from an older adult before taking action.
5. Respect confidentiality and privacy rights Get consent before sharing another person’s private information, including confidential personal or health information.
6. Avoid ageism Prevent ageist assumptions or discriminatory thinking based on age from affecting your judgment. Avoid stereotypes about older people and show respect for the inherent dignity of all human beings, regardless of age.
34 (cont’d)
7. Recognize the value of independence and autonomy Where this is consistent with the adult’s wishes, assist the adult to identify the least intrusive way to access support or assistance.
8. Know that abuse and neglect can happen anywhere and by anyone Abuse and neglect of older adults can occur in a variety of circumstances from home care to family violence.
9. Respect rights An appropriate response to abuse, neglect, or risk of abuse or neglect should respect the legal rights of the older adult, while addressing the need for support, assistance, or protection in practical ways.
10. Get informed Ignorance of the law is not an excuse for inaction when someone’s safety is at stake. If you work with older adults you need to educate yourself about elder abuse.
35 Marilyn Piccini Roy, AD. E., TEP Robinson Sheppard Shapiro, S.E.N.C.R.L. [email protected]
Elisabeth Evans-Olders, LL.B., TEP RBC Wealth Management, Estate &Trust Services [email protected]
36