Abuse of Older Adults/Prepare for the Future
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Wills
My elderly friend is being bothered by her children fighting about her property. She has asked me about making a will. What do all the legal terms mean?
A will is a legal document that sets out your wishes concerning the distribution of your property and possessions when you die.
- The maker of a will is called a "testator".
- If you die without leaving a will, you are said to have died "intestate". If you die intestate, the law then deals with the way your assets and possessions will be distributed. Generally, the rules set out an exhaustive list of alternative scenarios that deal with a surviving spouse and children and possibly a surviving adult interdependent partner. If there is no spouse, no children, and no adult interdependent partner, the estate goes (in order) to surviving parents, siblings, nephews and nieces, and next of kin.
- The property and possessions that you leave when you die are described as your "estate".
- When you make a will, you can appoint one or more persons to look after your estate. This person is called an "executor".
My friend is wondering whether it's worth the bother to make a will. What can I tell her?
There are many good reasons for making a will:
- When you die without a will, your property and possessions are distributed in accordance with the laws on intestacy rather than in accordance with your wishes.
- You can formally decide who receives specific property and possessions rather than have your family fight about them after your death.
- If you do not make a will, any property that you own cannot be distributed until an administrator has been appointed.
- If you are responsible for children under the age of majority or children who are incapacitated, you can provide for their future care by appointing guardians in your will.
I have seen stationery kits and computer programs for making wills. Can I tell my friend to use one of these to make a will?
While it is possible to purchase these and make your own will, it may be worthwhile to consult a lawyer. There are strict rules about making a will that are very important to ensure that the will is valid. In addition, a lawyer may be able to design a will that takes into account possibilities that a standard form cannot. Many lawyers charge a set fee for making a fairly simple will.
What are the rules that apply to making a will?
All provinces and territories have laws that set out the rules for making a will. Be sure you know what is required in the area where you live. Here are examples of some of the rules that might apply:
- A will must be in writing to be valid.
- Generally, a will must be signed at the end by the testator in the presence of two witnesses. Then the two witnesses must each sign in the presence of the testator.
- It is possible to make a valid will without witnesses if the will is made entirely in your own handwriting. This is called a holograph will. It is generally not advisable to rely upon making a holograph will (except in extreme circumstances), because of the likelihood that other requirements to make the will valid will not be present.
- A person must be over 18 years of age to make a valid will unless he or she has been married, or is a certain member of the Canadian Forces, or is a mariner or seaman.
- A person (and his or her spouse) who is receiving a gift under a will cannot witness the will.
- An executor can witness the will unless he or she is a spouse of a beneficiary.
- Marriage revokes a will unless the will specifically says that it is made in contemplation of the marriage.
- Divorce does not invalidate a will.
My friend does not want to leave anything in her will to one of her sons who has received a lot of money from her already. Someone told her that if she does not leave anything to him, he could challenge the will after she has passed away. Is this true?
Every province and territory has a law that allows for certain people to apply for support from the estate of a deceased person, where they were left nothing at all or where they feel they were not left enough. The laws in each jurisdiction are slightly different and have different names. For example, in Alberta, it is the Dependants Relief Act; in British Columbia, it is the Wills Variation Act; in Nunavut, it is the Dependants Relief Act; and in Quebec, it is contained within the Civil Code as Survival of Support Obligation After Death.
Generally, the laws allow for someone who was a dependant of the deceased to apply for more funds from the estate. Who qualifies as a dependant differs in each area. For example, in Alberta any child who does not have a disability must be under 18 years of age, but in Saskatchewan children over 18 might be considered if they fall within a set of criteria set out in the law.
Your friend should try to find out what the law is in her province and then make a decision based upon that information. For example, if it is likely that her son could challenge the will, she might want to provide for him so that other members of the family will not have to deal with that situation.
My friend says she has decided not to write a will. She believes her children will be given their share based upon the rules relating to intestacy and her son will have the same share as everyone else. Is that right?
It will be necessary to consider the law in your friend's area. It may be that the law allows someone who comes within the law's definition of dependant to apply to court for more of the estate than would be given under the rules relating to intestacy. If your friend writes a will she may be able to save her other children from the stress and cost of litigation.
Future Care
My elderly friend is in poor health and her children are quite overbearing. She is worried about what they may decide is best for her if she becomes unable to make decisions for herself. How can she make sure her own wishes will be followed?
All provinces have laws that allow people to create a legal document setting out their wishes relating to personal care at a time when they are no longer able to make those decisions for themselves. The legal documents are called by different names in different areas. For example, in Alberta, it is called a Personal Directive; in British Columbia, a Representation Agreement; in New Brunswick, a Power of Attorney for Personal Care; and in Quebec, a Mandate in Anticipation of Incapacity. In common language, these documents are sometimes called Living Wills.
Generally, the document will
- name someone to make decisions on your behalf,
- name people who can determine that your own mental capacity is such that you can no longer make those decisions for yourself,
- name those who are and who are not to be told about the document becoming effective, and
- give instructions with regard to confidential information about you.
Each provincial law may have different requirements for creating a valid document, so it is necessary to find out what the law in your area requires. Generally, the maker of such a document must be over a certain age, and the document should be signed and dated in the presence of a witness. There may be restrictions regarding who can witness the document, for example, the person designated in the document as the agent may be restricted from being a witness.
How can my friend be sure that the person she appoints as her agent to make personal decisions for her will follow her wishes?
Your friend needs to consider local laws relating to the making of such a document to get a specific answer. Generally, the law provides safeguards making sure that the terms of the document are followed. Also, at the request of an interested party, such as a close relative, the law may allow for review of the conduct of the agent.
Depending on the law, certain medical procedures, for example, psychosurgery, may only be carried out if your friend (the maker of the document) has specifically given her agent the power to make that decision.
The law may allow for more than one agent to be appointed so that accountability to each other is required. Some guidance about the conduct of those who are providing a service covered by the terms of the legal document may also be covered in the law. For example, it may be stated that service providers must follow the instructions of the document and/or the agent.
How can my friend feel confident that her children will not try to put the document into effect before she is truly unable to make her own decisions?
Again, your friend needs to consult the law in her area to determine exactly what requirements are needed to set the document into effect. The document is likely to say that it comes into effect when your friend becomes incapable of making certain decisions. She can specify the people who she wishes to make that decision, for example, two physicians.
The law may also define exactly what is deemed to be incapacity to make decisions. For example, the Personal Directives Act of Alberta describes capacity as the ability to understand information that is relevant to making a personal decision with the competence to appreciate the reasonable foreseeable consequences of the decision.
What happens if an unforeseen situation arises that the document doesn’t cover?
Local legal requirements may cover what will become within the authority of an agent. Generally, if the document is not too specific in its terms, an agent will have authority to make personal decisions on all personal matters related to the maker of the document. Where directions are not clear, the law may require the agent to make decisions based upon
- what he or she thinks the wishes, beliefs, and values of the maker of the document would be, or
- what he or she thinks would be best for the maker of the document in the circumstances.
If it is really clear that the authority to make the decision is not within the terms of the document, it may be necessary to appoint someone else to make those decisions. All provinces also have laws to provide for the appointment of a guardian to look after the affairs of someone who can no longer make personal decisions.
Future Asset Management
My friend has property and assets that she is worried about her children trying to control. Is there a way she can control the management of those things if she becomes unable to make decisions for herself?
Yes. Your friend can make a legal document that gives another person authority to act for her in respect of property and other assets. In most provinces such a document is called a Power of Attorney. In Quebec, it is called a Mandate Given in Anticipation of Incapacity.
A power of attorney can be made at any time to give another person authority to act for you. If the power of attorney, however, is to last beyond a time when the maker of the document becomes incapable of making her or his own decisions, the document must explicitly state that fact. For example, if the power of attorney does not state that it will be effective at a time when your friend becomes incapable of making her own decisions, the document will become void at that time. In some provinces, powers of attorney will also become void when another decision-making authority is empowered under another law, such as mental health law.
A power of attorney that comes into effect on the incapacity of the maker of the document is sometimes called an Enduring Power of Attorney, or a Springing Power of Attorney.
Can my friend write the power of attorney herself?
The laws respecting the creation of a power of attorney require that certain formalities are adhered to, otherwise the document will be void. Therefore, your friend might wish to seek advice from a lawyer, or perhaps a social agency, if she wants to make a power of attorney.
For example, the document will have to be dated and signed before a witness. There will likely be rules regarding who can be a witness to the document, which might easily be broken without prior knowledge of those rules.
Are there ways to review the conduct of the person who is given the power of attorney?
While your province may have a particular law regarding powers of attorney, generally the attorney can be asked to produce an account of transactions made while using the power of attorney. If there is dissatisfaction with the report, interested parties can apply to have the attorney removed. It might also be possible for certain persons (who will be defined by each province's law) to simply apply to court for the power of attorney to be ended. The court would then consider the evidence and decide what is in the best interests of the person who gave the power of attorney.
How can my friend feel confident that her children will not try to put the document creating the enduring power of attorney into effect before she is truly unable to make her own decisions?
The power of attorney should state clearly that it will take effect at a specific time or when a specific event occurs. This would include the mental incapacity or infirmity of the maker of the document (donor). The document can then go on to specify when and how it will be determined that the event has occurred.
In the case of the mental incapacity or infirmity of the donor of the power, the document could provide that it would be determined when one or more named persons have made a written declaration to that effect, for example, two doctors. The document should name someone to be the person who will make the determination based on the written declaration from the doctors.
If my friend has made a will and a power of attorney, will they contradict each other when she has passed away?
No. Death of your friend, or the person appointed as her attorney, will end the power of attorney.
Losing Decision-Making Power
My grandmother lives with my uncle and is worried that he is going to place her in a seniors' home against her wishes. She has told him that she does not want to go, but he says he is going to get the power to make those decisions for her. Can he do this?
As long as your grandmother is fully capable of making her own decisions, she cannot be forced to live somewhere that she does not want to live.
When people become incapable of managing their own affairs, it is possible for others to apply to have the authority to make personal and financial decisions for them. Every province has a law that allows for such a process. The law may be called different names in different areas, for example, in Alberta, it is the Dependant Adults Act; in Ontario, it is the Substitute Decisions Act; in New Brunswick, it is the Infirm Persons Act; and in Quebec, it is included within the Civil Code as Protective Supervision. The persons appointed to make the decisions for the incapable person might be called guardians, trustees, curators, or a committee. The laws are not specific to seniors and can be applied to anyone.
The laws in each province will be different in their specific requirements, but generally no one will be given decision-making authority over another unless it is determined by a medical opinion that the person is incapable of making his or her own decisions. The only situation in which this requirement might be waived is in an emergency situation where the medical report cannot be obtained quickly enough and there is immediate danger to the physical or mental health of the person. Even in an emergency case, there would likely be a review once the immediate crisis was over.
Will the rest of the family know if my uncle applies to have decision-making authority over my grandmother's affairs?
The law in your area will set out a list of people who have to be notified when an application is made for someone to have decision-making power over another. The list might include a relative of the person. Usually, the list will also include the government official who can become the decision-making authority for those with no one available or willing to act as their guardian or trustee. This government official is often called the Public Guardian, or Public Trustee, or in Quebec, the Public Curator.
Who will decide that it is appropriate to appoint someone else to make decisions on my grandmother's behalf?
Again, it will be necessary to check the process in your own area, but generally an application to be given decision-making authority over another must be made to court. The legislation in your area will set out the process to be followed and may allow for anyone to object to the application as long as he or she acts within the given time limits. If no objections are received, the court may be able to appoint a guardian or trustee without a hearing.
If an order is made giving my uncle decision-making powers for my grandmother, what kinds of decisions will he be able to make for her?
Some provinces have laws that distinguish between decision-making powers over personal and financial matters. The law may set out specific powers that the decision-maker has or leave the power open. When granting an application for another person to have decision-making powers for another, the court will ultimately determine what powers should apply.
Typical decision-making powers with regard to personal matters would include
- where a person lives,
- who the person lives with,
- what social activities the person can engage in,
- where the person might work,
- what health care is appropriate, and
- normal day-to-day decisions about dress and diet.
Typical decision-making powers regarding financial matters would include
- investing money in authorized investments;
- consenting to the transfer or assignment of a lease;
- drawing, accepting, or endorsing some financial instruments;
- carrying on a trade or business; and
- disposing of property.
My grandmother is worried that if my uncle gets the power to make decisions for her, she will be placed somewhere more like a mental health hospital than a seniors' residence. Could this happen?
It could happen, however, any effort to place an individual in a mental health facility is subject to very strict requirements in each province. Medical, social, and psychological opinions are required in order to place a person in mental health facilities. In addition, there are rights of appeal and review, and the obligation to notify other relatives and specified interested people and agencies.
Consumer Fraud
My aunt was excited because she got a phone call telling her she had won a car. In order to collect it, she had to pay some kind of a gift fee. She paid the fee but never received the car. What can I tell her to do in the future so she does not get caught by another scam?
Under federal law, all telemarketers must state at the beginning of a call why they are calling, the name of the company or person they are representing, and the type of product or business being promoted. If your aunt does not get this information when she asks for it or she is suspicious, she should hang up the phone. She should never pay any fee of any kind in order to recover a prize, or give out her credit card details.
The Competition Bureau investigates complaints of telemarketing fraud and will prosecute offenders. You can report a suspected crime of this nature by calling 1-800-348-5358. There is also an agency called PhoneBusters to help people victimized by telemarketing fraud. There is a service within PhoneBusters specifically for seniors. PhoneBusters can be reached at 1-888-495-8501. In your aunt's province, there is likely also consumer legislation that allows for the reporting and investigating of such incidents. Her provincial government office will be able to tell you what options exist.
My elderly aunt had a man come to her door and offer to do some house repairs. He got her to sign a contract and pay an advance fee. He then left to get materials and she never saw him again. What can I tell her to do in the future so she does not get caught by a scam again?
It is good advice never to hire a person who just arrives on your doorstep. If you need work done, get advice and recommendations from family and friends. Even then it's a good idea to get several estimates before you decide whom to use.
Your aunt can check out a contractor's qualifications by calling her local Better Business Bureau, or the consumer services branch of her provincial government. There might be rules about the way contracts are concluded outside of a business place and who can make such contracts. It would not be unusual, for example, that the contractor should be licensed and bonded in order to do business in this way.
Consumer legislation in your aunt's province likely allows for the reporting and investigating of such incidents. Her local provincial office will be able to tell you what options exist.
Abuse in Institutions
My friend lives in a seniors' residence. I am concerned about the standard of care she is receiving there. Last week she had a bruise on her arm and told me one of the nurses had hit her. Should I make a complaint about this treatment? To whom do I complain?
Initially, you might only have to complain to the manager or owner of the residence for the matter to be investigated and dealt with. If that doesn't help, you may have to look at other options.
Some provinces have laws that require anyone to report any suspected abuse of adults living in institutions and seniors' lodges to specified authorities. Other provinces have laws that allow for reporting of suspected abuse, but do not make it compulsory. In both cases, there is normally also a statement in the law that no action can be taken against the person who made the complaint.
Even if a province does not have a law that provides for reporting suspected abuse of seniors in an institution, there are other ways to initiate a complaint. It is always possible to go to the police if you suspect that someone is being harmed or mistreated. Also, there will likely be some kind of licensing body in the province with regard to operating seniors' residences, together with detailed rules about how the residences must be operated. You might consider making a complaint to the licensing body.
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This page was last updated in June, 2009.
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