Law Times

Page 12 OctOber 23, 2017 • Law times www.lawtimesnews.com FOCUS Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. We offer unparallelled expertise for your most catastrophic injury cases. Direct access to hundreds of specialists from all areas of healthcare expertise. A top provider of cost of care reports for your most catastrophically injured clients. More than 2,000 malpractice, personal injury and class action cases. More than 300 lawyer clients assisted. Serving lawyers across Canada. Also, the United States, United Kingdom, Australia and Caribbean. LEARN MORE: CONNECTMLX.COM EXPERTS@CONNECTMLX.COM TOLL FREE: 855-278-9273 Since 2001, we've become a leader in Expert Witness Services in Canada. onnect Medical_LT_June12_17.indd 1 2017-06-06 1:07 PM of pocket and may never get all of their costs back," says LeValliant. "This can also take years, and in the meantime, we have elder- ly people who are being taken advantage of, who are vulner- able, and I have never once seen the police respond to financial abuse." LeValliant says that she has never seen a charge or an arrest in her own experience, nor has anyone in her office, with thou- sands of cases seen. One case in Ottawa saw the conviction of a daughter who was found by a jury to have de- frauded her father after she was given power of attorney over his affairs. The case, which was pre- sided over by Justice Giovanna Toscana Romano, was not re- ported and not appealed. LeValliant says that because the case is unreported, its utility as a precedent is limited. "The problem with an un- reported case is that nobody knows it happened," says LeVal- liant. "It would be a great precedent and should be reported. In the estates bar, I know I would find that useful, but, unfortunately, those cases are not normally dealt with that way." Whaley notes that even if el- der abuse is proven, sentences are not long, and it becomes difficult to get any money back. Sometimes, a public guardian or trustee does step in to act as a litigation guardian to recoup some assets. "The trouble is that we're not seeing many reported cases later on of what happens after those proceedings commence, and what the success is of those fur- ther proceedings to try and get money back," says Whaley. "We just know that some of these elderly people are then left destitute as a result of their own children's actions, and it's really horrible." As part of their recent fi- nal report on "Legal Capacity, Decision-making and Guard- ianship," the Law Commission of Ontario made several rec- ommendations on enhancing clarity and accountability when it comes to powers of attorney, in order to address concerns around the financial abuse of older persons through use of powers of attorney. The recommendations in- clude: a mandatory standard- form statement of commitment to be signed by the people ac- cepting an appointment as an attorney prior to acting for the first time under such an appoint- ment; the delivery of notices of attorney acting at the time that the attorney first begins to act in that capacity, which would be de- livered to the grantor, the spouse, any previous attorney and any monitor appointed, as well as any other person identified in the power of attorney instru- ment; and the option to name a monitor, who would have statu- tory powers to visit and com- municate with the grantor and to review the accounts and records kept by the attorney. Another recommendation is for a separate tribunal to deal with power of attorney issues in a faster and more cost-effective manner. "Hopefully, some of those recommendations will be acted upon," says Whaley. LT tion of assets after death. For example, she says what may happen is that, despite a will saying that a house was to be sold and the proceeds divided, the child who has the house in joint tenancy may insist that it was to be given to them as a gift. Weigl points to the Supreme Court of Canada's decision in Pecore v. Pecore, 2007 SCC 17, where this was the case. Weigl also notes a case she dealt with where a man put his financial assets into a joint name with his only son, who then be- gan changing the investment philosophy to one of greater risk at a time when his father was in- capacitated by a stroke. Upon recovery, the man tried to reassert control over his as- sets, which resulted in litigation and a settlement, with the added hurt of the breakdown of the re- lationship with his son. Another issue, says Weigl, is when an account is put into joint names with a child, and when that child has matrimonial is- sues, it exposes the account to the matrimonial claims of the spouse or other creditors of the child. "You need to really under- stand what the potential risks are with the joint tenancy and make sure that your clients un- derstand," says Weigl. "There are alternative ways to reduce the payment of pro- bate taxes and, in some cases, it's simply not warranted to take all steps to reduce probate taxes." Weigl adds that if there is still an insistence on going the joint tenancy route to avoid probate taxes, it should be done trans- parently, involving all of the children and beneficiaries in the discussion in order to avoid sur- prises when the parent dies. LT Continued from page 10 Elder abuse a serious issue Understand risks Continued from page 11 Holly LeValliant says there has been reluc- tance by some police forces to treat abuses of power of attorney as a criminal matter. Founding Partner Bronze Sponsor Hosted in Partnership with GALA DINNER AND AWARDS PRESENTATION Honouring Canada's Leading Lawyers Under 40 – from law firms and in-house. 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