March 2015
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Montreal Gazette Article
"Elder abuse is a serious concern and it’s on the rise, given the growing aging population in Quebec." According to Article 48 of the Quebec Charter of Human Rights and Freedoms, “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.” Elder abuse, or the “exploitation of an aged person,” involves taking advantage of the vulnerable state or dependency of a person of advanced age and ultimately depriving this person of his or her rights.
This can be in the form of physical abuse, psychological abuse, emotional abuse, abuse of rights, financial abuse, or neglect.
Disturbingly, in most cases, the abuse is committed by someone in a position of trust who is well known to the individual, such as a family member or a close friend.
As a notary, I am in the privileged position of working directly with many aging clients to whom I provide important legal counsel with respect to wills, powers of attorney/mandates given in the event of incapacity and the purchase or sale of an immovable property.
As a notary, I must be satisfied that my client is mentally competent and has the ability to comprehend the document or contract that he or she will ultimately sign. If I have the slightest doubt regarding the mental capacity of my client, I immediately request a current medical opinion for the protection of my client’s best interest. In my work, I remain forever vigilant for any sign of elder abuse. Sadly, I have come across various potential abusive situations. In the scenario that follows, the names have been changed to protect professional confidentiality. A middle-age woman, Jane, had enlisted me to assist her family members with a real-estate transaction between an elderly vendor, Jane's Aunt Irma, who was no longer capable of physically caring for herself, and the purchaser, Jane's son Bob. Jane informed me that Irma wished to sell her family residence to Bob for an amount that was below market value. She confirmed that Irma was mentally competent (one is presumed to be mentally competent unless there are reasons to believe otherwise).
However, to fulfill my professional obligation of ensuring my client's comprehension of the situation, I was required to speak directly to Irma. Jane reluctantly provided me with Irma’s telephone number. Over the following days, I had several phone conversations with Irma, who appeared to have a good understanding of the coming real estate transaction. On the day of the transaction, I was the first to arrive at Irma’s assisted-living seniors’ residence (I do agree to meet clients at their place of domicile if they are not physically mobile, and such was the case in this file). Upon introducing myself to Irma, I observed a confused woman who did not know who I was and why we were meeting. Her expression quickly changed from confusion to fear; she was no longer aware that she had agreed to sell her house.
She desperately asked me to help her since she felt that this was not a favourable situation. I quickly updated Bob and Jane upon their arrival, a bottle of champagne in tow to celebrate the imminent acquisition. I explained the legalities as to why I would no longer proceed with the sale without a medical opinion, given my observations and concerns.
Bob and Jane became enraged at the turn of events and began spewing verbally abusive accusations and comments. Irma sobbingly apologized, feeling she was to blame for this imbroglio. Irma was clearly not someone who was in a position to provide free and enlightened consent. Jane refused my request to obtain a medical opinion of Irma. I thereby refused to continue with the transaction as I was not going to participate in a case of elder financial abuse.
In Quebec, the Commission des droits de la personne et des droits de la jeunesse has jurisdiction to initiate an investigation if there is reason to believe that an elderly person is a victim of abuse. A notary who witnesses certain forms of elder abuse in the context of his/her legal work is in a thorny situation.
The notary is obliged to respect the client’s right to confidentiality (a right protected under the Quebec charter). As a result, the notary can only report the concern to the commission with the consent of the elderly client (as long as the client is deemed mentally competent). The Loi sur le notariat only allows the notary to disclose information without the consent of his/her client in specific cases where dangers of death or grave physical injuries are imminent.
Everyone must do their part to be vigilant and watch for signs of potential or actual elder abuse to protect those who are the most vulnerable among our growing aging population. To contact the commission, call ????
