Introduction

The British Columbia Public Guardian and Trustee is pleased to be a sponsor of the 2019 Canadian Elder Law Conference.

In Services to Adults the Public Guardian and Trustee (PGT) protects the legal, financial, personal and health care interests of adults who require assistance in decision making. The following services are provided from one or more of our three offices located in Vancouver, Victoria, and Kelowna:

Assessment and Investigations Services
Each year many people call the Public Guardian and Trustee (PGT) to find out what they can do to help a friend or relative who is not able to manage their finances on their own or to report possible abuse, neglect or self-neglect of an adult who may not be able to manage independently. British Columbia’s laws give the PGT and designated agencies (health authorities and Community Living BC) the ability to respond to concerns about a vulnerable adult.

The PGT can provide initial support by:  

• providing information on options available to help the adult;
• consulting on problems related to complex risk situations involving abuse, neglect or self- neglect; or initiating an investigation, if required.

The PGT will start an investigation when:

• there is a concern that the adult may be mentally incapable of managing their financial affairs;
• there is a specific, urgent or immediate need with assets at risk; and
• there is no other suitable person (family or friend) who has the authority or is willing and able to act on the adult’s behalf

The purpose of an investigation is to better understand the risk and determine how the adult can be best supported by family, friends and or community in the most effective and least intrusive manner. Sometimes PGT being appointed as committee of estate is the best option given the adult’s circumstances.

 
Personal Decision Services

BC’s care facility admission legislation came into force on November 4, 2019. To coincide with this, the PGT launched our new Personal Decision Services department to include health care decision making and new duties regarding care facility admission. The PGT is named under both parts of the Health Care (Consent) and Care Facility (Admission) Act as either temporary substitute decision-maker (TSDM) of last resort for health care decisions under Part 2 or substitute decision-maker (SDM) of last resort for care facility admission decisions under Part 3. If there is no willing, available and qualified substitute or there is a dispute between equally ranked family decision-makers, the PGT can authorize a suitable TSDM for health care treatment decisions or a suitable SDM for facility admission. If it is unclear who to choose between equally ranked substitutes, the PGT will make the substitute treatment and/or facility admission decisions. More information about how we are operationalizing our new role under the care facility admission provisions are outlined in our new publication Care Facility Admission and the Role of the PGT

Financial Management and Personal Decision Making Services

The Public Guardian and Trustee (PGT) provides a wide range of direct financial management and legal decision-making services for vulnerable adults. For the majority of PGT adult clients, the PGT is committee of estate under the Patients Property Act with responsibility for the legal and financial management of our clients’ affairs. When the PGT is appointed committee of estate, PGT staff work with the client to establish an effective management plan that includes managing property and investments, paying bills, securing assets and pursuing compensation where appropriate.

As committee, the PGT supports and promotes a client’s independence and involves the client where possible in key decision making. The case manager will meet with the client to identify needs, priorities, the level of participation and to develop a management plan. If assets are secure and the adult is able, the PGT will minimize its involvement in day to day decisions such as grocery shopping and entertainment.  Many clients still maintain and use their own bank accounts.  

In situations where there are financial decisions that may impact personal or health care decisions, the PGT works collaboratively with the adult and/or others who have legal authority, such as a committee of person or representative, to ensure that decisions the PGT makes are in the best interests of the client.   

Review of Court Applications and Monitoring of Private Committees

PGT is served with applications for the appointment of a committee and reviews the documentation submitted to court to determine whether the requirements of the Patients Property Act have been met, whether the applicant is the appropriate party to act as committee, and whether provisions should be included in the order such as bonding or restricted access to assets.

The PGT’s Private Committee Services department (PCS) helps committees to understand their role and monitors the actions of committees by reviewing their accounts on a regular basis and undertaking investigations when concerns are reported.  Our Private Committee Handbook contains details of the roles and responsibilities of private committees once appointed and gives guidelines as to how to exercise these as committee. Reporting to the PGT is a statutory requirement for all Private Committees of Estate.

Canadian Elder Law Conference

The Canadian Elder Law Conference, entitled Bridging the Gap: Elder Law for Everyone, will be taking place from November 14-15, 2019 in Vancouver, BC. For more information on how to become a sponsor or how to register for the conference, visit the CCEL’s Canadian Elder Law Conference page.

The post British Columbia Public Guardian and Trustee: Gold Level Sponsor of the 2019 Canadian Elder Law Conference first appeared on British Columbia Law Institute.

Earlier this year OBSI released its first ever Seniors Report, documenting the experiences of seniors using its services. The national, not-for-profit organization collected demographic and case data for 2017 and 2018 to create the report, which used the age of 60 as the threshold age of a senior.

Demographics

The report shows that 38% of complaints to OBSI came from people over the age of 60 and that complaints from seniors are more likely to be made by men than women, especially for married complainants. Over half of these senior complainants report having household incomes below $60,000, while one-third are still active in the workforce. Most senior complainants live in an urban (53%) or suburban (27%) community. A disproportionate number come from Ontario (52%) relative to its share of the Canadian senior population (38%), followed by British Columbia (13%), Alberta (12%) and Quebec (11%).

Banking services

Fraud is the most frequently reported banking issue for seniors. Credit cards are the bank product OBSI received the most complaints about from consumers over 60. Credit card chargebacks are the most complained about combination of bank product and issue. For seniors over 70, missing or lost funds also led as an issue for complaints. The report contains several case studies illustrating these issues.

Investments

The report showed that older Canadians are more likely than younger Canadians to file complaints relating to investment issues. Seniors’ investment-related complaints related predominantly to mutual funds and common shares, and their complaints mostly focus on the advice that they received when making these investments. The suitability of common shares and mutual funds, as well as fee disclosure, were the most complained about combination of investment products and issues.

Case Studies

Included in the report are several case studies illustrating the issues most complained about by seniors, including cases of seniors who have complained about investing in high risk investments with unexpected fees, have found themselves holding investments they can’t sell, have run into trouble with estate planning in times of crisis, have fallen victim to frauds, and have experienced problems with joint accounts and powers of attorney.

Observations

“OBSI has been helping Canadian consumers and financial services firms resolve their disputes for over 23 years,” said Sarah Bradley, Ombudsman and Chief Executive Officer, OBSI. “We are well positioned to observe the difficulties that senior consumers can face when they have a problem with the financial services they use.”

Some of the challenges faced by seniors that OBSI identified in its report include:

• Barriers to effective access to financial services – these include information barriers, emotional and social barriers, physical barriers, and economic barriers that affect seniors to a greater extent than younger Canadians.
• Communication challenges – seniors often report being overwhelmed by lengthy disclosure documents that contain too much information and require extended periods of attention and focus.
• Technology challenges – technology offers some innovative solutions for the challenges seniors face, but in general, they are less likely to take advantage of newer technologies. Even seniors who are comfortable with technologies, such as online banking, are nevertheless more vulnerable than younger clients because they may not be as aware of the security measures they need to protect their interests.

Policy and practical solutions

The report also highlighted a number of solutions financial services providers and regulators could consider to reduce the challenges faced by seniors, such as:

• Encouraging financial service providers to identify and use “trusted person” procedures
• Providing protection for providers of financial services who take action in what they reasonably believe to be the best interests of the consumer
• Ensuring that employees of financial services firms have the right incentives to provide appropriate services to seniors
• Using shorter, simpler documents that may also be taken away to share with trusted family members or advisors before making decisions
• Increasing the number of specific warnings to senior clients at key junctures or moments of risk
• Training for employees who deal with senior consumers and clients should encourage them to recognize vulnerabilities, perform basic assessments of capacity and adjust the delivery of information to the needs of the individual

The 2019 Seniors Report can be found on our website in both English and French.

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Canada’s Ombudsman for Banking Services and Investments (OBSI) is a national, independent and not-for-profit organization that helps resolve and reduce disputes between consumers and financial services firms in both official languages. OBSI is responsive to consumer inquiries, conducts fair and accessible investigations of unresolved disputes, and shares its knowledge and expertise with the stakeholders and the public. If a consumer has a complaint against an OBSI participating bank or investment firm that they are not able to resolve with the bank or firm, OBSI will investigate at no cost to the consumer. Where a complaint has merit, OBSI may recommend compensation up to a maximum of $350,000.

For more information, contact:
Mark Wright, Director, Communications and Stakeholder Relations
416-287-2877 ext.2225
mwright@obsi.ca

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2019 Elder Law Conference 

To learn more about OBSI, join us for the 2019 Canadian Elder Law Conference. Ombudsman and CEO, Sarah Bradley will be presenting at the conference, sharing how OBSI can help consumers, on Thursday, November 14.

This year’s conference, entitled Bridging the Gap: Elder Law for Everyone will be taking place from November 14-15, 2019 in Vancouver, BC. For more information, including how to register, visit the CCEL’s Canadian Elder Law Conference page. 

The post Difficulties Seniors Face with Financial Services first appeared on British Columbia Law Institute.

This post is part of a series highlighting key themes and presenters from the 2019 Elder Law Conference. To see the other posts in the series, click here

Historically the area of estates was not particularly litigious, but as families and financial circumstances become more complex, litigation involving estates has become more frequent. Frequently touted, but notoriously difficult to prove, is the allegation of someone being unduly influenced in making their Will.

A client of mine (let’s call him Derek) passed away leaving behind his (younger) common-law spouse (let’s call her Nancy). Derek had adult children from his first marriage. Derek and Nancy had lived together for a few years and she cared for him during a long period of declining health resulting in his ultimate death.  I had met Derek shortly after the death of his first wife and helped him prepare his first Will. He met Nancy and their relationship progressed, such that he adjusted his Will multiple times, each time increasing the support provisions for Nancy. On his death, Derek provided Nancy with a sizeable trust, from which she would receive a monthly stipend. His adult children each received specific bequests. The children fought to overturn the Will, primarily on the basis of undue influence.

Undue influence, in the context of wills, requires “testamentary undue influence, amounting to outright and overpowering coercion of the testator, which must be considered.” In Seguin v Pearson, 2018 ONCA 355 the Court of Appeal re-confirmed that in Ontario, the party attacking the will bears the onus of proving that the will was made due to undue influence.

Earlier court cases have outlined 6 circumstances that can be relevant to establish undue influence:

• increasing isolation of the testator;
• the testator’s dependence on the alleged influencer;
• substantial pre-death transfers of wealth from the testator to the alleged influencer;
• the testators expressed yet apparently unfounded concerns that they are running out of money;
• the testator’s failure to provide a reason or an explanation for leaving his entire estate to the alleged influencer and/or excluding family members who would expect to inherit; and
• documented statements that the testator was afraid of the alleged influencer.

The facts in Seguin were similar to Derek’s situation, and in Seguin the court found no evidence that the spouse had exerted undue influence over the testator in the making of his wills. Ultimately, the court noted that the will followed several months of deliberate reflection, meticulous legal advice and that the lawyers who had provided advice to the testator, had copious notes documenting his intentions prior to death. The court helpfully added that one of the factors that can be considered in rebutting the allegation of undue influence is whether the testator (the Will maker) got independent legal advice and the quality of that advice.

Preparing a comprehensive estate plan, including a Will and Powers of Attorney are extremely important. As I like to tell clients, experienced estate lawyers plan to minimize the risk of litigation with properly prepared and executed documents. Therefore, it is important to share with them the details of your unique situation. In Derek’s situation, I was aware of his relationship with Nancy, so we were able to take steps to minimize the risk that a claim of undue influence would be successful.

Canadian Elder Law Conference

To learn more about undue influence, join us for the 2019 Canadian Elder Law Conference. Deidre J. Herbert and Dr. Kenneth Shulman will be speaking on ‘Undue Influence—“Please”, “Unless” or Something Else’.

This year’s conference, entitled Bridging the Gap: Elder Law for Everyone will be taking place from November 14-15, 2019 in Vancouver, BC. For more information, including how to register, visit the CCEL’s Canadian Elder Law Conference page. Scotiawealth Management is a Gold level sponsor.

The post Ontario Law on Undue Influence in Estate Planning first appeared on British Columbia Law Institute.

Introduction

We are pleased to announce that the British Columbia Securities Commission is a Gold Level Sponsor of the 2019 Canadian Elder Law Conference. The British Columbia Securities Commission is responsible for regulating the securities market. They provide education for the public on topics of investing and fraud prevention. In this blog post, we share an interview with Pamela McDonald, the Director of Communications & Education at the British Columbia Securities Commission.

Seniors are often targeted for financial fraud and scams from strangers. What are the best ways seniors can protect themselves from fraud?

 Pamela: Knowledge is the best protection.  Know the warning signs of fraud, and when you spot them, walk away and report possible fraudulent investment scams to the British Columbia Securities Commission.

The warning signs include:

• Promises of higher-than-normal returns, or investments that are “risk-free,” “backed by assets,” “held in trust,” “offshore” or “tax-free.”
• An investment tip from a social acquaintance, work colleague or even a family member.
• Claims that the investment is available only to a select few.
• High-pressure sales tactics, especially to invest quickly.
• Sales pitches that are overly complicated, inconsistent or loaded with jargon.

It’s always a good idea to:

• Check an investment salesperson’s registration through the Canadian Securities Administrators’ website.
• Ask for written material about the investment. Take your time, do your research. If you’re told there is no time to do your homework or think it over, then there is a good chance it’s not a legitimate investment.
• Ask an independent professional, like a lawyer or registered investment adviser, about the investment.
• Stick with investment goals that are right for you; don’t expect to get rich quick.
• Don’t give out your personal information, and always be on guard for emails that might contain malicious software.
• Avoid the temptations of free gifts or promotions.
• Report suspicious investments to the British Columbia Securities Commission.

What would you recommend seniors do to protect themselves from financial abuse by family or friends?

Pamela: Even if it’s someone you trust, don’t let your guard down – that person might have the best of intentions, and may not realize they have fallen for – and are now helping to perpetuate – a fraud.

What would your organization recommend to lawyers that they can do to help protect their clients and their investments?

Pamela: Lawyers can help their elderly clients understand the different types of authority that can be given to others to manage their financial affairs. For example, what does it mean to give someone the power of attorney over your account? How is that different from entering into a joint account relationship? Based on that knowledge, seniors can then think about how they want their affairs managed if they are incapacitated or in a difficult situation.

Lawyers should also encourage seniors to seek help in understanding the legality of investments when they are being approached to invest in something that they don’t understand.

What are your favourite fraud prevention resources for seniors?

Pamela: The British Columbia Securities Commission’s investor education website – InvestRight.org – has many helpful resources. We recommend InvestRight’s Fraud Email Course.

In addition, the following pages should be very helpful – they are not geared specifically to seniors because anyone can be a victim of investment fraud, but the pages apply to them:

• Fraud warning signs
• Investment fraud explained
• How to research an investment offer
• How to identify a con artist
• How to spot investment scams  

Why does your organization feel it is important to support the seniors sector and older clients?

Pamela: Investing at any age involves a careful weighing of risk and reward, critical thinking, and the ability to do some research, all aimed at making sound decisions. As Canadians – and thus, investors – live longer, the subtle changes caused by physical, cognitive or psychological limitations could make these tasks more challenging. Research suggests that older Canadians are at a heightened risk of financial exploitation: Canadians aged 65 or older are the most likely age group to report being the victims of financial fraud, and financial abuse is the second most common form of elder abuse in Canada.

Protecting investors is one of the core responsibilities of the British Columbia Securities Commission, and because of the potential vulnerabilities associated with aging, protecting seniors is a major thrust of our efforts, whether it’s through public education campaigns, distribution of advice and tips, ensuring that investing professionals fulfill their responsibilities to clients, and taking enforcement action against those who prey on investors. We want to make sure that the nest eggs that people have spent decades growing are put to their intended use – supporting a healthy, fulfilling retirement.

Canadian Elder Law Conference

The Canadian Elder Law Conference, entitled Bridging the Gap: Elder Law for Everyone, will be taking place from November 14-15, 2019 in Vancouver, BC. For more information on how to become a sponsor or how to register for the conference, visit the CCEL’s Canadian Elder Law Conference page.

The post Interview with British Columbia Securities Commission: Gold Level Sponsor of the 2019 Canadian Elder Law Conference first appeared on British Columbia Law Institute.

I am employed by a multi-disciplinary research consortium “Dementia or mild cognitive impairment: @ work in progress”. One part of the project is a comparative study between the relevant legislations in Finland, Sweden and Canada. Thus, I ended up visiting the University of British Columbia and the Canadian Centre for Elder Law.

After landing in Vancouver, recovering from a 10-hour time-difference and walking around beautiful beaches, I felt slightly overwhelmed and insecure. What shall I really compare? How am I able to understand even basics of common law, a system so unfamiliar to a civil law lawyer like me? What difference does it make? What I have learned from my comparative research is that you cannot plan everything ahead. Research findings are always surprising. You should remain very open-minded, calm and just try to gradually gain some understanding of foreign legal thinking. These past experiences have been also confirmed obvious during my visit to the University of British Columbia.

The legal research I am conducting focuses on two diverging themes: on the one hand, private mandates in case of diminished capacity to act and on the other hand, reasonable accommodations in working life. Both are relevant from the perspective of the UN Convention on the Rights of Persons with Disabilities. In the following, I make a few preliminary observations on the findings regarding private mandates that I made during the time I spent in Canada.

When comparing the Finnish Continuing Power of Attorney (hereinafter ‘CPA’, in Finnish: ‘edunvalvontavaltuutus’) with British Columbian enduring power of attorney (hereinafter ‘EPA’) and innovation Representation agreement (hereinafter ‘RA’), two different aspects should be highlighted.

First, the capacity requirements of an adult giving powers of representation are worth noting. The requirements of capacity set in the Finnish Act on CPA seem to be somewhere in the middle of the capacity requirements of the British Columbian EPA and RA. In the Finnish system, an adult is capable to give a CPA if she understands its meaning at the moment of decision-making. The capacity is then bound to the legal act itself and the content of the given legal instrument. The common law the test of capacity used in British Columbia is more strict, as the requirements seem to extend the scope of the legal instrument itself. The British Columbian RA, is in principle, based on a similar premise as the Finnish CPA which relates to an adult’s understanding of the specific provisions and powers that she is giving. However, RA favors capacity and gives it high importance. Its specific provisions are meant expressly to support capacity. Thus, the way the capacity is understood and supported in the RA does not correspond the understanding in the Finnish CPA.  

Second, the safeguards relating to the use of mandates have been scrutinized much more in British Columbia than in Finland. The tradition of using private mandates in case of diminished capacity to act is much longer in British Columbia than in Finland. Thus, it can be claimed that perhaps more problems have emerged in British Columbia. The Finnish CPA is still a relatively new instrument. The Act on CPAs came into force in 2007. Thus, just in recent years, we have started to have CPAs in use. Financial elder abuse has not yet raised public attention in Finland. In addition to that, it must be kept in mind that the distinctive character of Nordic societies is that they are based on something which could be called high mutual trust. This is visible also in relation to the law. In the Nordic countries, there are no notaries which would draft legal documents as documents can be drafted (in theory) without any legal assistance. Moreover, form requirements are relatively loose and can be – officially or unofficially – interpreted in favor of validity.

To sum up, my journey towards understanding common law, especially the Canadian legal system, has only begun. However, the research visit at the Canadian Centre for Elder Law has provided me with new insights for further research. I did arrive back home with new ideas and contacts.

The visit assured me that the comparative research of private mandates in case of diminished capacity to act is definitely worth conducting. Different legal systems have very different approaches towards promoting personal autonomy and self-determination of adults who do not have full decision-making capacity but the need to respect personal autonomy is universal.  Moreover, as we observe a major paradigm shift – a changing mentality towards perceiving persons with diminished capacity as actors instead of objects of protection, researchers and practitioners in different countries can learn a lot from each other.

I would like to thank Executive Director Kathleen Cunningham for guiding me in the right direction and the British Columbia Law Institute and Canadian Centre for Elder Law for hosting me as a visiting scholar. In addition to that, I also wish to thank my employer – Law School of the University of Eastern Finland and the MCI@work project for giving me the possibility to explore the world. All mistakes and misinterpretations are of course my own.

The post Finding similarities and differences in Finnish and British Columbian legal systems first appeared on British Columbia Law Institute.