Oct 31st, 2022
Jan 25th, 2023
By Barry Landy
Elder abuse is a societal scourge, not only in Quebec, but all over the world.
All too often, seniors are victimized, often by their own spouses or children. They are bullied or harassed or encouraged to “gift” their wealth; or disinherit one person in favor of another; or are coerced into moving into an assisted living facility, or otherwise into doing things that they would not do if they had the physical and emotional fortitude of their youth.
On April 6, 2022, Quebec adopted a law entitled an Act to combat maltreatment of seniors and other persons of full age in vulnerable situations .
For the most part, this law applies to health institutions. However, this law is certainly not a comprehensive law dealing with protecting the elderly in a systemic fashion.
Nevertheless, tucked away in the fine print is article 21 which reads (in part) as follows:
21. Any health services and social service provider or any professional within the meaning of the Professional Code (chapter C-26) who, in the exercise of his or her functions or the practice of his or her profession, has reasonable grounds to believe that a person is a victim of maltreatment must report the case without delay where the person is
(3) a person of full age who is under tutorship or curatorship or for whom a protection mandate has been homologated
(4) any person of full age whose incapacity to care for himself or herself or to administer his or her property has been ascertained by medical assessment, but who is not under a protective measure; or
This section applies even to persons bound by professional secrecy, except lawyers and notaries who receive information about such a case in the practice of their profession.
Anyone who contravenes the provisions of the first paragraph commits an offence and is liable to a fine of $2,500 to $25,000. Those amounts are doubled for a subsequent offence.
The purpose of this blog is to remind doctors, lawyers, notaries and accountants in particular that as professionals within the meaning of the Professional Code, you have a legal reporting obligation, where during the course of a professional consultation you witness elder abuse.
For example, an accountant receives an elderly person accompanied by a son or daughter to discuss estate planning. During the meeting there are worrying signs that the person may be suffering from an incapacity, or may be in a vulnerable situation because of various factors such as illness, disease, injury, impairment or handicap, which may be physical, cognitive or psychological in nature,
In these circumstances, the law obliges the accountant, under penalty of law, to report the suspected abuse.
Professional secrecy or confidentiality may be lifted if there is a significant risk of death or serious injury. A serious injury is defined as a “physical or psychological injury that has a significant adverse effect on an identifiable person’s or group of persons’ physical integrity, health or well-being”.
Note that lawyers and notaries should take particular care before reporting and should discuss matters with their respective professional orders, since the law does not relieve these professionals from their professional secrecy obligations.
By the way, the law also provides that no proceedings may be brought against a person who, in good faith, has filed a complaint or made a report of maltreatment or cooperated in the examination of a complaint or in the processing of a report, whatever the conclusions issued.
Let’s all be vigilant in protecting our seniors to the extent we can.
Oct 31st, 2022
By Daniel Frajman
Mar 11th, 2019
By Barry Landy
Succession, Taxation law