Protecting the vulnerable: New law comes into effect soon
The law was supposed to apply last June, but the pandemic decided otherwise. “Members of the health network had to be trained on the new legislation,” explained the Public Curator, lawyer Julie Baillargeon‑Lavergne. “But last January and February a COVID‑19 wave monopolized resources, so we decided to delay implementation.”
Changes are significant. Here are the main ones:
— Instead of three protection methods (called tutorship, curatorship, advisership), now there is only one: tutorship. It can be adjusted as a function of the person’s capacities;
— The tutor will no longer be able to hold full management;
— Now the protection mandate will start with an inventory of the incapable person’s property and, periodically, administrative accounting will have to be provided to a third party.
A new support mechanism
People in a vulnerable situation can also name an assistant or choose a temporary representative. These functions are not the same as the trusted third party. The temporary representative does not have the right to take over a specific task, such as waiving a succession. The third‑party representative is “someone who the advisor can contact, for example, if they cannot get in touch with their client, if they are worried about cognitive loss or if they suspect abuse,” explained lawyer Geneviève Beauvais, who is in charge of professional development and quality of practice at CSF.
The assistant can take a wider variety of actions. They can:
— Act as intermediary;
— Provide advice to the assisted person;
— Contact third parties to obtain or provide information, and inform them of a decision taken by the assisted person;
— Access personal information about the assisted person, with their consent and solely if the information is needed to help them, including information protected by professional secrecy (e.g. lawyer‑client privilege)
Be careful about conflicts of interest
The assistant cannot sign documents in the name of the assisted person, take decisions for them, act in a situation raising a conflict of interest, nor be paid for their help. “For these reasons, a professional financial advisor cannot become an assistant for their clients, even if they are members of their family,” warned Ms. Beauvais. “Even if there is only a potential for a conflict of interest, the advisor could still be considered to be in breach of the Law.”
This is also how the Public Curator sees it. “The assistant must demonstrate particular interest for the assisted person, not be in conflict of interest and cannot be remunerated,” she warned. “From the start, this rules out a person’s financial service advisor.”
Ready for the influx
The process to designate an assistant is rigorous and includes a list of at least five close relatives of the person being assisted, a summary evaluation of the extent of their assets, and verification by the Public Curator, including interviews with the assisted person and then with the assistant. The names of assistants will be recorded in a public registry.
“We expect between 5,000 and 10,000 applications in the first year, but interest is hard to predict,” said Ms. Baillargeon‑Lavergne. “We have planned for high demand and have the capacity to process 7,500 requests. We may also get help from external lawyers and notaries, for example for the interviews.”
Explanations for this new measure have been added to the guide on detecting and addressing signs of vulnerability in your client (Détecter et traiter les signes de vulnérabilité chez votre client).