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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
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)
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
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
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)
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
- 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)
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
Benefits:
- documents easily retrieved
- problems of competing mandates/wills reduced
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)
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
