rich old men – sexy young women
TRANSCRIPT
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Financial Exploitation: Does Québec Offer Some Mitigating
Practices?
Ann M. Soden. Ad. E.
National Institute of Law, Policy and Aging
Montréal, Québec
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1. Absence of estate probate fees and taxes:
Benefit: No systemic rationale for divesting/gifting of property prematurely
Reality: While perhaps reduced, pressures to gift or to prematurely and inequitably divest, nevertheless employed, without guise, by family members and third parties out to exploit (e.g. care agreements)
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2. Role of the Notary under Civil Law: Benefits: - public officer - represents all parties to transactions impartially - in position to point out risks to principal (mandator/testator) and explain duties to designated legal representative (mandatary/liquidator) - can provide for and explain accounting/reporting/oversight provisions in legal instruments
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Reality: - information not universally given to legal representative when document is unilateral - accounting requirement rarely inserted in a protective mandate (enduring POA) Note: Law reform will provide for accounting requirement under all mandates; public education and continuing professional training underway advocating enhanced counseling of principals and written and in-person information on responsibilities for legal representatives
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3. Homologation of Mandates Benefits: - comprehensive medical and psychosocial assessments of domains of incapacity and of capacity, a precondition to coming into force of mandate - examination of principal as to capacity and his confirmation of his designated representative carried out by court (public order rule of audi alteram partem)
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Reality: - costly and transparent process, avoided by those without money and by exploiters who continue to act under banking or general powers of attorney, previously executed - frequent failure to respect due process requirements
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- government proposals to further simplify court review (homologation) process resulting in further erosion of procedural protections
- lack of representation of the Quebec Bar proposal to require lawyer in every instance where civil rights are at stake)
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4. Registration of Wills and Mandates with the La chambre des notaires and Barreau du Québec
- established in 1961
- when prepared by a lawyer or a notary
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Benefits:
- documents easily retrieved
- problems of competing mandates/wills reduced
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5. Joint Accounts not Subject to Survivorship Rules
Benefits:
- no survivor rights
- accounts are frozen upon death permitting proof of ownership of funds in account by liquidator (executor)
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Reality:
- frequent abuse of joint account holder role where joint account is used to facilitate access by legal representative (status and agency role should be documented and in evidence on account)
- if the joint account survivor is the liquidator and/or legatee, estate plans have potential to be frustrated