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Abuse was defined by the World Health Organization in 2002:

« Elder abuse is a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person ». The Toronto Declaration on the Global Prevention of Elder Abuse.

Nathalie B. Poisson
LL.B., D.D.N.

Practice Leader, Notarial and Estate Law

A growing phenomena

Unfortunately, we can expect that this abuse, already seen in our society, will become more prevalent over the next few years due to the growing number of elderly people, their increasingly long life expectancy and the greater vulnerability that comes with advanced age, their greater wealth, and the sophistication of the techniques used to defraud them.

Worsening vulnerability

During this global pandemic, the vulnerable situation of many people has worsened and some who were not considered vulnerable have become so because of the severity of the health crisis and the financial and other consequences that resulted.

There are many possible forms of abuse: neglect as well as financial, psychological, physical and sexual abuse.

How to recognize financial abuse

Financial abuse is characterized by the fraudulent or illegal and unauthorized acquisition or use of the property or legal or financial documents of a person in a vulnerable situation. This can result in the following actions: pressure to change a will, banking transaction without consent, excessive price charged for services rendered, embezzlement.

The following signs can help detect financial abuse:

  • unusual banking transactions,
  • missing valuables,
  • sudden lack of money for day-to-day expenses,
  • lack of information on asset management,
  • decision-making without consultation of the person in a vulnerable situation.
What to do if you are a witness?
Be informed

  • The SOS Abuse Kit: http://www.troussesosabus.org/ was established in 2010 and comprises more than 80 tools providing information on elder abuse prevention, identification and intervention.
Identify the signs

If you think that a vulnerable person is in a situation of abuse, here are a few useful resources if you witness abuse:

Intervention

If the abuser is the legal representative, you must notify the Public Curator of Québec : https://www.curateur.gouv.qc.ca/cura/fr/index.html or by telephone at 1-800-363-9020.
Contact the Aide Abus Aînés line : https://www.aideabusaines.ca/  or by telephone at 1-888-489-ABUS (2287). This is a free, confidential and bilingual service (English and French, interpreter service for other languages).

Obligation to report
Under section 21 of the Act to combat maltreatment of seniors and other persons of full age in vulnerable situations, any health services and social services provider or any professional within the meaning of the Professional Code has an obligation to report any act that may seriously undermine the physical or psychological integrity of a person. This obligation to report concerns persons living in a long-term care facility as well as incapable persons for whom a protection mandate has been homologated.

What to do to avoid becoming a victim?

The best way to put the odds in your favour is to sign a protection mandate and appoint a trusted person who will administer your property and take care of you in the event of your incapacity. In addition, you can provide in the protection mandate that this representative, who will act if you become incapable, will have to report annually or more frequently to a third party, who will have to ensure the sound management of your assets while you are incapable.

Following incapacity, if you have never signed a protection mandate or if all the persons designated in your mandate cannot act, current law provides for the obligation to hold a meeting of relatives, persons connected by marriage or a civil union, or friends of at least five persons who will meet to give their opinion on who will represent you.

  • If your incapacity is total and permanent, a curator must be appointed.
  • If it is established that your incapacity is partial or temporary, a tutor to a person of full age will be appointed.
  • If you are generally able to care for yourself and manage your property, but you need help to make certain decisions, an advisor to a person of full age will be appointed.

In addition, a tutorship council composed of three persons must be formed whose role will be to supervise the conduct of the curator or of the tutor. In this case, it is not you who will choose your representative, and you will not have the opportunity to express your wishes concerning the protection of your person, as you could in a protection mandate (end-of-life treatment clauses, for example).

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Bill 18: safeguarding autonomy

It is important to know that the rules concerning protective supervision for persons of full age will undergo substantial amendments following the coming into force of Bill 18, An Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions as regards the protection of persons, passed by Québec’s National Assembly on June 2, 2020. The purpose of this Bill, which will come into force in 18 to 24 months, is to offer simplified assistance and representation measures better suited to each person’s situation. The aim is to safeguard the autonomy of vulnerable persons by allowing them to continue exercising their civil rights as much as possible.

Here are some of the new proposals: 

The mandatary appointed in a protection mandate will now:

  • have to take an inventory of the property of the incapable person within 60 days following the homologation of the mandate
  • have to report to a person designated in the mandate to receive such reports, unless the mandator expressly waives this requirement.

Failing a protection mandate, the advisor to a person of full age will be abolished and replaced by two new streamlined assistance measures;

  • The assistance measure – A person who, because of a difficulty, wishes to be accompanied when making certain decisions will be able to apply to the Public Curator to have this request for assistance approved and to have the name of the person who will assist them entered in a public register for three years. This assistant will have no power over the property and will not be able to sign any document on behalf of the vulnerable person. This assistant will act as an intermediary in dealings with third parties like banks and government organizations. No medical or psychosocial assessments and no court procedures will be required, and it will be free.
  • Temporary representation – This measure will enable a person to perform a specific act on behalf of a vulnerable person (for example, sell their house). This measure is limited to the specific act mentioned in the application. A medical assessment and legal procedures will be required for this..

Curatorship and advisors to a person of full age will be abolished and tutorship will be the only protection regime for an incapable person in Québec. All persons of full age currently under the curatorship regime will now be under the tutorship regime. The court will have to take into account the capacities of the incapable person in order to allow them the possibility of performing certain acts alone.

A decisive choice

If you wish to personally choose the person who will represent you in the event of incapacity to avoid being the victim of financial abuse, and if you wish to clearly establish your wishes concerning your end-of-life care, signing a power of attorney and a protection mandate is the ideal solution. However, you must think carefully before appointing your attorney and mandatary in order to choose a person you trust who has all the requisite qualities and, above all, check with this person to make sure they are ready and willing to assume these tasks and responsibilities.

Professionals’ Financial has a variety of services to respond to your needs in the event of incapacity. We have developed targeted financial intelligence in financial and estate planning which you can benefit from for your and your loved ones’ well-being. Talk to your advisor about this: he is your direct link to all of our expertise.

Nathalie B. Poisson, LL.B., D.D.N.
Practice Leader, Notarial and Estate Law


The information contained herein has been obtained from sources deemed reliable, but we do not guarantee the accuracy of this information, and it may be incomplete. The opinions expressed are based upon our analysis and interpretation of this information and are not to be construed as a recommendation. For any questions, don’t hesitate to contact your wealth management advisor or your tax specialist, accountant or legal advisor.

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