CLIENTS AND CASES WHICH DISTINGUISH US
- Persons with varying degrees of diminished capacity whose civil rights are at issue and require representation by legal counsel in the understanding and assertion of their rights and/or advocacy of due process protections where lawyers may be reticent to represent an impaired person, and/or the person’s finances are controlled by another and the lawyer risks not being paid or experiencing a long delay in payment;
- Persons declared by a court as incapable and who are currently represented by a mandatary, tutor or curator and wish to assert legal rights their representative is refusing or neglecting to advocate on their behalf or is, him or herself, the perpetrator of the problem(s) experienced;
- Incapacity or vulnerability and presence of exploitation and/or abuse by a family member requiring resolution of multifaceted issues using holistic methods of conciliation, mediation and preservation/repair of relationships;
- Incapable persons who have died and an accounting from their former legal representative is required to recover monies due to the person’s estate which were negligently misspent or intentionally misappropriated;
- Persons not eligible and matters not handled by legal aid and non-judicial, alternative dispute resolution not permitted by current legal aid legislation;
- Cases wherein legal aid clinic is the sole clinic in the area and there is a potential conflict of interest;
- Clients not meeting the eligibility criteria of ‘vulnerability’ nor cases deemed within the mandate of the Quebec Human Rights Commission (a substantial percentage of the cases of the CDPJ relating to older adults involve financial exploitation contemplated by Article 48 of the Charter of Human Rights and Freedoms (Québec)):
- Estate/succession issues where the exploitation has occurred during the lifetime of the older person;
- Financial exploitation within a marriage where the person is capable but vulnerable (predatory marriage issues);
- Cases involving financial aid and care issues in institutional settings, described below;
- Failure to pay for room and board leading to declarations of incapacity and protective supervision
- Physical abuse and assaults in care facilities
- Abuse of power in care facilities
- Negligence in care facilities
- Leases of care facilities, assisted living premises and cases of restricted access to older persons in care facilities
- Court orders of (capacity) evaluation
- Court orders of forced care facility placement and/or of medication
- Cases of abuse (notably psychological abuse and denial of rights) which are not legally actionable but which involve resolution of misunderstandings, incorrect application and/or failure to apply best professional practices of law and ethics, e.g. family disputes regarding representation and representatives, accountability, access and wishes/rights of the vulnerable family member respecting capabilities, housing and care; and misunderstandings as to limits of powers of representatives.
CASES OF INTEREST
Leave No Stone Unturned: Allegations of Abuse
Our older client alleged accounts of theft, vandalism and physical abuse over the past five years. She stated she had given a mandate to a cousin and now wanted to revoke it. While we explained to her that she was always free to revoke her power of attorney, we needed to visit the lady to better understand her challenges, her support systems and to explain her legal rights to her. She was living in a beautifully- appointed apartment in a seniors’ complex. The director of the complex was very patient with the resident and explained that a video camera was installed on each floor and actually overlooked the client’s door. An authorized call to her bank manager confirmed that she had no power of attorney and we asked the bank to confirm this fact to the client in writing. With her consent, we arranged for the client to have friendly visiting and other assistance from the local CLSC (local health and social services center) and called a cousin regarding various sources of help for this lady.
Postscript: The client has taken to calling the police recently and the police department’s psychosocial emergency response team were referred to our clinic: We were able to confirm that this lady is being followed by the CLSC and although she has psychological challenges, she is able to function on a daily basis under the patient, compassionate eye of her apartment administration. We continue periodic visits.
The Importance of Consumer Protection
Mme. D is an elderly lady who lives alone in rural Quebec. A travelling salesperson from an appliance company convinced her to purchase new heating and air conditioning systems for her house, with the promise of large electricity savings. She signed a contract with the salesperson right away, and wrote a deposit cheque of $1000 to the appliance company. After the salesperson departed, she made further inquiries with Hydro Quebec and realized that the energy saving would not be so significant. She decided to cancel the contract with the appliance company. The company accepted to cancel the contract, but presented her with an invoice that slightly exceeded the amount of the deposit, for expenses that they had allegedly incurred. Mme. D contacted the Centre in order to recover her deposit. An examination of the contract revealed a host of irregularities according to the provisions of the Consumer Protection Act. The Centre sent a registered letter to the appliance company, detailing the non-performance and numerous problems with the contract and the invoice. The company reluctantly agreed to reimburse the deposit and the Office of Consumer Protection was informed of the case, the solution and the need for further public education of consumers and of itinerant vendors on their respective rights and obligations.
Interprovincial Residence Transfers
Living alone in a Quebec residence as an Anglophone surrounded by French-speaking seniors became unbearably lonely for one client. As a result, this client’s daughter contacted the Centre to help coordinate moving her mother an English-speaking residence and in turn to a residence in British Columbia, where she lives. The Centre is coordinating with a representative of Interior Health in British Columbia and its Public Trustee in order to ensure the client was eligible for Long Term Care. In addition, the Centre wants to ensure that the client would be placed in a residence in close proximity to her daughter – ensuring loneliness would not be an issue again.
Respecting Individual Autonomy
Mr. A lives in a residence in Montreal. He contacted the clinic after receiving a letter from the Public Curator seeking to declare him incapable to manage his finances and partially incapable as to his person. Mr. A does have a long history of trouble managing his finances. The Centre entered into communication with the Public Curator as well as the residence. In the interim, the Centre assisted Mr. A in arranging his finances at the start of each month, and accompanied him to the police station to file a complaint against companies sending him fraudulent letters promising him money in exchange for deposits of varying amounts. An attempt to organize his finances through the residence failed when he demanded full control but neglected to pay the rent. Mr. A now agrees that he could benefit from some assistance in managing his finances. The Centre negotiated and obtained, through the Public Curator, new medical and psychosocial assessments which provide specific information as to the client’s capacities in many domains and conclude that the level of protection initially recommended for Mr. A. was not appropriate. The Centre will advocate the development of a protocol with the Public Curator to ensure that this client’s capacities are preserved and fostered.
Who’s Got the Power?
A frequent type of case at the clinic is one wherein a family member calls us because the legal representative (normally a mandatary) is controlling/limiting visits or excluding access to a parent or family member. There is no justification to limit or prevent visits. This behaviour reflects a history of difficult family relations, in particular, sibling rivalry. The mandatary erroneously believes he/she has the power to decide for the older person.
The person with diminished capacity, even when represented, has the right to make his/her own decisions about whom to see unless there is an order of the court otherwise. The mandatary’s true role is that of advocate of what the protected person wishes, whether that person is capable of communicating or not, and cannot substitute his/her own values and personal decisions for those of the person represented. The clinic attempts in such cases to bring the feuding parties together to a family meeting with a neutral third party who knows the person: a doctor or social worker, or the Public Curator where the Public Curator is the supervising body, and to mediate a solution. Where the door to facilitation or mediation of solutions remains closed, we have undertaken legal proceedings to confirm visitation rights and, where appropriate, seek to have the legal representative replaced or placed under the supervision of the Public Curator.
A second wife who never got along with her husband’s children wanted to restrict the children’s visits with her husband at his residence to hours and types of outings she had approved of in advance. A facilitated family meeting was organized to which the wife, her lawyer and brother were invited along with our client, the husband, the three adult children and the residence social worker as a neutral, informed party. The legal rights of the husband and father to make his own decisions from time to time as to whether he wanted a visit or to go out were clarified. Visits would naturally be organized with the residence and be mindful of the regular visiting times of the wife. The fact that the husband had dementia or was legally represented by his wife, as mandatary, did not remove or alter and suspicious, his right to make all decisions he was capable of. Also put into place was permission for the children to receive full information as to the evolution of their father’s mental and physical conditions directly from the health and social work professionals at the residence. The father gave his consent and his wife, previously uncooperative and suspicious, gave hers too, realizing, as the meeting went on, that we were all looking to promote her husband’s wishes and legal rights while being respectful of her role as wife.