When estate planning involves a transaction with an elderly person or a person of full age in a vulnerable situation (“Vulnerable Person”), lawyers and notaries (“Legal Advisers”) must be careful to reconcile the wishes of the parties, the protection of the vulnerable client and professional secrecy.
The Act to combat maltreatment of seniors and other persons of full age in vulnerable situations1 (“Act”), assented to on May 30, 2017, considers that “Québec has one of the world’s populations most impacted by aging”. It allows the prevention and reporting of abuse. The Act also ensures that the Vulnerable Person’s interests and autonomy are protected in order to maintain the relationship of trust and accessibility such individuals have with professionals, including their Legal Advisers.
Guidelines have been issued by both the Bar of Québec and the Chambre des notaires du Québec to ensure that Legal Advisers comply with the legal and jurisprudential limitations on professional secrecy while maintaining public confidence.
Legal Advisers need to look at the overall picture, to determine whether the client is victim of maltreatment. The Act defines maltreatment as “a single or repeated act, or a lack of appropriate action, that occurs in a relationship where there is an expectation of trust, and that intentionally or unintentionally causes harm or distress to a person”. A discussion alone with the Vulnerable Person will clarify the family dynamics, identify the person’s true wishes and confirm any doubts that have been raised.
Where abuse is suspected, the Legal Adviser needs the potential victim’s consent before contacting anyone. If obtaining such consent is not possible, the Act only allows a Legal Adviser to lift professional secrecy when there is a serious risk to the victim of abuse and an act of violence must be prevented.
Once the Legal Adviser determines that the situation calls for the lifting of professional secrecy, the privileged information must only be communicated to those persons or organizations that can help the Vulnerable Person. Also, only essential information that will help prevent serious bodily injury or death of the victim of abuse should be sent to the authorities. ln order to successfully carry out the mandate entrusted to the Legal Adviser, the latter must follow up with the Vulnerable Person and the authorities to which he sent the confidential information.
Various statutes governing professionals are changed by this recent Act to encourage the participation of all types of professionals in the collective social effort to combat the maltreatment of Vulnerable Persons. This is a good opportunity for lawyers and notaries to apply their expertise and resources to promote the proper treatment of Vulnerable Persons.
1 S.Q., 2017, c. 10