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Is there any legal impediment, in Canada, when it comes to accepting
gifts from an elder parent whose competency is in question but whose
children have not yet invoked power of attorney?
Howdy justme0000,
Has the parent in question been ruled incompetent by the court
or other hearings? This might help researchers.
Thanks, denco-ga
You said "invoked" not "obtained". Does this mean the childred already
HAVE power of attorney but just have not used it?
regards;
tutuzdad-ga
no court has found this person to be incompetent but she has
demonstrated a significant decline in her ability to comprehend
numbers, for example cannot distinguish between $10. $100. or $100,00.
She wants to give money to her children. Is this a moral or legal
issue?
no court has found this person to be incompetent but she has
demonstrated a significant decline in her ability to comprehend
numbers, for example cannot distinguish between $10. $100. or $100,00.
She wants to give money to her children. Is this a moral or legal
issue?
The children do have power of attorney but have not put it in place
yet.
Howdy justme0000,
Please keep in mind the "Important Disclaimer: Answers and
comments provided on Google Answers are general information,
and are not intended to substitute for informed professional
medical, psychiatric, psychological, tax, legal, investment,
accounting, or other professional advice."
My answer is based primarily on the extensive (95 pages)
and well written paper that was prepared for the Law
Commission of Canada under the title "Pourquoi est-il si
difficile de lutter contre la violence envers les a n s
et en particulier contre l’exploitation conomique dont
ils sont victimes?" By Donald Poirier and Norma Poirier
and submitted July 17, 1999.
Material or financial abuse or exploitation is the issue
at hand. Here is the Health Canada definition.
http://www.hc-sc.gc.ca/hppb/familyviolence/html/neglect/english/section%202.htm
"'Material abuse,' often referred to as 'financial abuse,'
involves the illegal or improper exploitation of an older
person's funds, property, or assets. Examples include, but
are not limited to ... misusing or stealing an older
person's money or possessions ... (Gordon, 1992; Health
and Welfare Canada, 1993; McDonald, 1996; NCEA, 1998)."
Since the person in question appears to not (at least)
comprehend what she is doing in the process of giving
money (she would have to have a basic grasp of how much
she was giving in order to be able make such decisions),
there are both moral and legal issues involved.
The moral and legal issues are those of trust, theft and
abuse. Once a parent shows signs of incompetency, then
it is a moral imperative for the children to look out for
that parent's best interests. From a religious standpoint
(morals and the bible go hand in hand) and according to
"The Interactive Bible" it is clear-cut.
http://www.bible.ca/f-child-responsibility.htm
"The Children's Responsibility to the Parents"
...
"The New Testament binds a great responsibility on
children when it says in Ephesians 6, verses 1-3,
'Children obey your parents in the Lord: for this is
right. Honor thy father and mother; (which is the first
commandment with promise;) that it may be well with thee,
and thou mayest live long on the earth'. The key words are
'honor' and 'obey'. There is no time limit on this. God
does not free a child from this responsibility simply
because he has now gone to college or is married."
Theft and abuse, from a moral stance, go without saying
much; they are against any moral view that exists. As
for legal issues, it is clear that there are laws in
place in Canada to deal with these issues, and if
there is abuse of a "relationship of trust" such that a
child would have, the legal system has not hesitated in
pursuing such abusers.
You will need the free Adobe Acrobat Reader to view the
document referenced below. If you do not have it, you
can download it from the Adobe website.
http://www.adobe.com/products/acrobat/readstep2.html
[Note that for convenience the page numbers given below
are the PDF page numbers and not the page numbers that
might be shown on the document itself. - denco-ga]
"Why is it so difficult to combat elder abuse and, in
particular, financial exploitation of the elderly?"
By Donald Poirier and Norma Poirier
http://www.lcc.gc.ca/en/themes/pr/oa/poirier/poirier.pdf
...
Page 8 - "Summary" - "The scientific community and the
population as a whole are now aware that financial
exploitation is the most common form of elder abuse."
...
Page 12 - "2.2 Canadian data on elder abuse at the time
of the adoption of elder prrotection [sic] laws" - "...
There was also much talk of the financial exploitation
of the elderly by their children (Coughlan et al., 1995,
p. 51). Cases were reported of seniors who had assigned
their assets to their children in return for a promise
that they would support their parents until their death,
and who had been thrown out of their homes once the
transfer had taken place."
...
Page 14 - "4.1 Types of abuse" - "... The notion of elder
abuse and neglect comprises several categories of abuse."
... "others add a fourth category, financial abuse or
exploitation (Podnieks and Finkelhor, 1990)."
...
Page 19 - "7.3 Abusers and victims" - "Podnieks and
Pillemer (1990) found that all victims of neglect but
one were women. The abuser was either a family member
(spouse, daughter or daughter-in-law) or caregivers from
outside the family."
...
Page 21 - "9. The Prevalence of Financial Exploitation of
the Elderly " - "9.1 Definitions" - "Financial exploitation
of the elderly is sometimes known as "material abuse" or
"financial abuse." This category covers situations in which
the assets or financial resources of the elderly person are
stolen or mismanaged."
...
"9.2 Prevalence rates" - "... It is generally accepted today
that financial exploitation is the most widespread form of
elder abuse." ... "The latest Canadian studies show that 40
to 60% of all cases of elder abuse take the form of financial
exploitation (Shell, 1982, p. 80; Stevenson, 1985, p. 16).
The study by Podnieks and Pillemer (1990) shows that financial
exploitation accounts for 60% of all cases of elder abuse. The
study by Dow-Pittaway and Westhues (1993) of adults over age
55 who had contacted health and social service agencies in
London, Ontario, reports that financial exploitation was the
most common form of elder abuse."
...
Page 33 - "4.1 Criteria for evaluating each of the 5 forms of
elder abuse" ... "3. Neglect" ... "b) Neglect of one’s
fiduciary duty"
...
Pages 55,56 - "4.1.1 The relevant provisions of the Criminal
Code" ... "The abuses committed against the elderly are not
necessarily any different from those committed against other
adults, especially women. In this regard, the Criminal Code
provisions governing crimes against property rights and
fraudulent transactions apply as much to the elderly as to
other age groups."
...
"Parts IX and X of the Criminal Code are relevant to the
protection of the elderly from financial exploitation, as they
cover offences against rights of property and fraudulent
transactions leading to contract. These parts of the Code
cover the offences related to property theft (ss. 322, 328),
breach of trust and breach of power of attorney (ss. 330-332),
extortion (s.346), fraud and false pretences (including the
transfer of real property) (ss. 361-363; 380), and
intimidation (ss. 423-424)."
...
"Original common law made a distinction between legal
incapacity and actual incapacity." ... "or that in fact the
person did not have the capacity to understand the nature or
weigh the consequences of the transaction they entered into."
...
Page 57 - "4.2.1.1 The provisions of the Criminal Code" The
provisions of the Criminal Code cover all the various types
of financial exploitation even though they are not aimed
specifically at persons incapable of administering their
property. In fact, parts IX and X of the Criminal Code
adequately protect the elderly from financial exploitation as
they cover offences ... breach of trust and breach of power
of attorney (ss. 330-332) ..."
...
Page 68 - "... Mr. Justice Laskin, then Chief Justice of the
Ontario Court of Appeal, had upheld the conviction of someone
accused of abusing his relationship of trust with an elderly
woman, who was senile to boot, in order to get hold of her
money (R. v. Kribbs, 1967)."
I would encourage you to read the entire document as it
addresses all sorts of potential issues that might arise
in such a situation as you describe. Despite the title
being in French the actual document is in English,
If you need any clarification, feel free to ask.
Search Strategy
Google search on keywords: "reduced mental capacity" canada abuse
://www.google.com/search?q=%22reduced+mental+capacity%22+canada+abuse
Google search on keywords: children "responsibility to their parents"
://www.google.com/search?q=children+%22responsibility+to+their+parents%22
Looking Forward, denco-ga Do the Dead Have Rights::
The purpose of these posthumous gifts is obviously to benefit the recipient so that for B, at least when it comes to accepting an offer or entering into
http://www.law.arizona.edu/faculty/FacultyPubs/Documents/smolensky/ALS06-27.pdfHOME |
Utah Bar::
that cause our clients to question the sanity of the legal profession. Raymond Takashi Swenson when they die and only if there is money in the trust!
http://www.utahbar.org/barjournal/pdf/2001_may.pdfHOME |
Ibiblio::
increased when he found the door of the gallery in question closed and locked. These were gifts from Belzoni to his native city of Padua; and his
http://www.gutenberg.org/dirs/2/0/0/8/20088/20088.txtHOME |
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