Bonus Episode One - Charlotte Salomon

In this special bonus episode of Beware the Mysterious Mark, producer Bill Collins sits down with Victoria lawyer Charlotte Salomon of Infinity Law, a board member of the Estate Planning Council of Victoria, for an in-depth conversation about the legal machinery that surrounds, and sometimes fails to protect, older adults facing financial exploitation.

Drawing on three decades of practice in wills, estates, and incapacity planning, Charlotte walks listeners through the documents, institutions, and legal grey areas that sit at the heart of Bert's story. Across the conversation, she explores six key areas:

Powers of Attorney. What an enduring power of attorney actually does, why lawyers often hold these documents in safekeeping until specific conditions are met, and how a second lawyer, unaware of the full picture, can be persuaded to draft a new POA that quietly revokes the first.

Capacity. The crucial distinction between medical and legal capacity, why the two tests are not interchangeable, and what it means when an older adult is deemed vulnerable but still capable of making their own decisions.

The Public Guardian and Trustee. When committeeship becomes an option, how families can apply to the court for protection when no power of attorney exists, and the real costs involved in bringing the PGT into the picture.

Police involvement. When contacting the RCMP is appropriate, the value of a wellness check, and what to do when an older adult is being isolated from family, friends, or their own doctor.

Title transfers and undue influence. The safeguards built into BC's Wills, Estates and Succession Act (WESA), how challenges to a will can be brought even before probate, and why estate litigation has become one of the fastest-growing areas of law.

Practical advice. The team approach to prevention: keeping the lawyer, the doctor, and a trusted contact person all on the same page, and the community resources, including BC's seniors' supports and the Canadian Centre for Decision-Making Capacity, that families can turn to.

Charlotte is candid about the limits of the law in this space. Confidentiality protects clients, but it also shields those who would do them harm. Capacity is messy. And the bright line we wish existed between "capable" and "incapable" simply isn't there.

For anyone who has listened to Bert and Brooke's story and wondered what could have been done differently, this conversation is essential listening.

The information shared in this episode is for general awareness only and does not constitute legal advice. Listeners with specific concerns should consult a qualified lawyer about their own circumstances.

Beware Mysterious Mark is a Radio Sidney production. This project is funded in part by the Government of Canada's New Horizons for Seniors Program.

Show notes, episode transcripts and resources: mark.radiosidney.ca

Contact: info@radiosidney.ca

Transcript

SPEAKER_00 0:04

Hello, I'm Barry Bowman. Welcome to a bonus episode of the docuseries Beware Mysterious Mark. A harrowing true account of elder financial abuse. Today's episode features producer Bill Collins in conversation with lawyer Charlotte Solomon, King's Counsel and Specialist in Wills and Estates. Charlotte is a member of the Estate Planning Council of Victoria.

SPEAKER_01 0:39

And so you're here as well as part of the Victoria Council on Estate Planning?

SPEAKER_02 0:47

It's the Victoria Estates Planning Council, yes, I'm on the board of that. And that's a group of professionals mostly made up of uh lawyers, accountants, and investment planners who all deal with wills and estates. Okay, but just as a proviso, this is not meant to be legal advice.

SPEAKER_00 1:03

Fair enough.

SPEAKER_02 1:04

So I'm a lawyer, and even though I am speaking to you in in a capacity of a lawyer, but also as someone who's on the board at the Estates Planning Council, what I'm saying today can't be construed as legal advice because every lawyer would need to sit down with their client and hear an exact fact pattern of what's going on and the different modalities involved before they could give legal advice on a matter.

SPEAKER_01 1:24

So uh in general, can you give uh our listeners a sense of what people are trying to accomplish with state planning and how it might impact their general their life plans?

SPEAKER_02 1:36

Well, estate planning is important for many reasons. First of all, uh so there won't be any surprises. So everyone knows, and the person who's doing the estate plan knows what is going to happen after they pass away, and also what's going to happen if they lose capacity. Because there will be a point in time where most of us will lose either physical or mental capacity, and we won't be able to make our own decisions. Something from banking and dealing with financial institutions and paying our bills to decisions as to where we're going to live as far as an old age home or care facility and what medical interventions are going to be made to prolong our lives.

SPEAKER_01 2:18

How often is it that the individuals define when their capacity slips or somebody else defines them as, say, not able to manage their affairs, their financial affairs particularly?

SPEAKER_02 2:30

Yeah, that's a difficult question. And the advice I would give to my clients is that you need to have everyone on the same page. So if someone is coming to my office to prepare estate planning documents, one of the important documents is a power of attorney. And the power of attorney is the document that dictates what is to be done for your financial needs if you cannot take care of your financial needs yourself. And in a power of attorney document, we usually have them as enduring, which means that they are valid the moment that they are signed, as opposed to a springing power of attorney, which is only valid upon a certain event occurring, like a medical event. We usually do enduring power of attorneys to make sure that we have everything covered. What if a client is going on a trip somewhere and let's say four months and they're going to be away and someone has to pay their bills? Or what if they subsequently become incapacitated? So that's why someone would do a power of attorney and name people as their attorneys. And then the big question is, what happens to this document? I just told you that it's enduring, so it's valid the moment that it's signed. What happens to it? Do I just give it to the person that's, you know, did the power of attorney or give it to the attorneys? No. What I usually do with it is I put it in my safe at the law firm. We have a safe, a fire safe that stores all these important documents. And uh then I get the person who signs a power of attorney to basically sign a letter as to when this is to be released. So there's certain conditions that are on that letter. First of all, if they tell me to release it, saying, Charlotte, I'm going to Japan for four months, I won't be around, please release my power of attorney. Or in the case of a doctor telling me to release it, and this has happened before, where I get a call saying, Yes, you know your client, Mr. So-and-so. Well, you may not know this, and that client may appear normal to you, but that client suffers from frontal lobe dysfunction, and therefore that client is giving all their money away to overseas callers. So the power of attorney needs to be invoked to remove that client from their capacity to make their financial decisions because they don't have capacity to do so. So that's another scenario. And then the third is if I know it should be released. For example, I usually have a good enough relationship with my clients. I keep in touch with them, I know when they're getting frail, I know when they're in the hospital, and it seems to me that this is the time that it should be released. So, and then I have absolute discretion. The clients do give me that to release a power of attorney if something happens that they get hit by a bus or or whatever. Um, so it is kept in my safe until those conditions are met. And that's a bit controversial too, because obviously without a power of attorney, the um person named as attorney cannot go to the bank and do the banking. So once a power of attorney is signed, just because it's signed doesn't mean that person has the authority. That person who's named as attorney has to receive the power of attorney signed, take it to the bank, and the bank will file it and know that this is the attorney that they are supposed to be dealing with instead of the person that made the power of attorney. So it's a bit complicated in that. And you know, a fact scenario that can happen is that the bank has one power of attorney that a lawyer prepared, and then a person is taken by perhaps another family member to a different lawyer to prepare a second power of attorney that revokes the first power of attorney, and the bank isn't notified as to that. So it's an interesting dynamic here because we think the power of attorney is going to be the final document, but someone has a right to revoke their power of attorney as long as they have capacity to do so. And if someone is taken to a lawyer who's not familiar with them, and possibly by a friend or family member who does not have the best intentions in mind, they could throw one over on the lawyer who doesn't who's not aware of the situation, the new lawyer, I mean. And that new lawyer could prepare a document that contradicts what the original instructions were given to the original lawyer.

SPEAKER_01 6:51

So presumably a lawyer has a duty to do some investigation uh prior to uh transferring the power of attorney.

SPEAKER_02 7:01

It's not so much a transfer, it's a brand new one. And every time, usually, when a lawyer does a brand new power of attorney for someone, the first line is I revoke all previous powers of attorney. The only time we don't do that is if we're doing a power of attorney for, let's say, British Columbia and our client has assets in another jurisdiction, we will say this is for the BC assets and does not revoke the say Ontario power of attorney. But usually it does revoke it. And the lawyer holding the original power of attorney who may not have released it yet, doesn't even know that their original power of attorney that they drafted for their client has been revoked.

SPEAKER_01 7:40

And there's no requirement for the new attorney to inform the old one, presumably.

SPEAKER_02 7:44

No, there isn't. And that's why banks are very wary of dealing with powers of attorney. And banks are now asking clients to identify what's called a trusted contact person. So this is over and beyond the person named as a power of attorney. And uh this is someone that the bank wants to have on record to say, okay, this is who let's say Mr. Smith trusted all the times that he's been with us as as a client of the bank. And if we get a power of attorney naming someone else, we know to ask this trusted contact person what's going on.

SPEAKER_01 8:19

So the bank uh also accepts some some level of due diligence when they're dealing with clients that they might have had for many years and really might not know if there's been a shift in their conditions.

SPEAKER_02 8:31

Exactly. So that's why the banks are trying to implement the trusted contact person um with their clients. And you're gonna see that more and more. It hasn't been done very often until now, but going forward, most banks are going to request that information. Yeah, safeguard basically.

SPEAKER_01 8:47

Uh how how much uh I I presume the banks deal with this every day, but uh I was wondering how much the liability is held in the bank for saying allowing a joint account, which countervenes what, say, the family member might know of as existing in their original power of attorney.

SPEAKER_02 9:06

Yeah, there there may be some liability on the bank if they know that there is a trusted contact person, yet the person who is their client comes to the bank with someone else and puts that person's name on a joint account. Right. But luckily, the Supreme Court of Canada has put on some safeguards to that. So especially in British Columbia, we follow a case called PACOR. And the PACOR case says that if there's uh joint account holders, the survivor of that joint account, um, which is probably, you know, the younger person, let's say, uh, that person holds a duty to the estate of the uh original bank account holder to um hold the what is in that account for the benefit of that estate. So there's not an automatic in a state law that it is known that this money is transferred specifically to the other account holder by virtue of survivorship. There is some sort of um need for that person to prove why they should take as a survivor.

SPEAKER_01 10:13

Right. Uh one of the things that we often talk about in terms of the story of financial elder abuse is is related to confidentiality. Uh we often say confidentiality is not your friend. Uh and um so can you talk a little bit about um in terms of I'm an estate planning professional, I'm dealing with my client. What's the what's the duty of care with respect to confidentiality? Confidentiality if you suspect something may not be right.

SPEAKER_02 10:47

Okay, so as a financial planner, you do have a duty of confidentiality unless you've had your client sign that document identifying a trusted contact person. So we go back to that. As a lawyer, it it's interesting because you do have a duty of confidentiality, but that's why when a client is in a lawyer's office, it is best for the lawyer to talk to the client about who should receive copies of the documents being signed that day. So what I would suggest to some of my clients is that you know you name your child as executor of this will, perhaps share the will with them. Or perhaps if you've named your child as a power of attorney, perhaps share the power of attorney with them and also with other people as well. So there should be open conversations among families, and that would really cut down on the problems later. So if a parent names only one child as a power of attorney and the other child as an alternate, I would suggest to that parent that they send copies of the power of attorney to both their children and explain why they set it out like this, or have a discussion ahead of time before signing the power of attorney as to why child number one is first and child number two is second. And that doesn't just apply to a power of attorney, as I mentioned, that would apply to being executor of a will, trustee of a trust, and even representatives of representation agreements. And we haven't talked about representation agreements, and uh those are important as well. So that is what we would call a power of attorney as to medical decisions. It's called that in Ontario. In BC, it's called representation agreements. Other people may call them living wills. So that's an agreement that you also name a representative, similar to power of attorney, but this representative is usually only dealing with your medical decisions. And it's important that family members are aware of who is first on the list for the hospital to call, who is second, what are the wishes of the person who named the representatives, and what they expect the representatives to do in their place about their medical decisions.

SPEAKER_01 12:59

And presumably uh a power of attorney is not necessarily the same person as a representative?

SPEAKER_02 13:06

No, and and that's an interesting point, because one thing we find with powers of attorney is it's really detrimental to name someone outside of British Columbia to deal with British Columbia assets, right? And same with a will. If you name, let's say, an American person as your executor of your BC will, it becomes an American estate. There's really a lot of problems with that. There would be American estate law that applies and could apply to that estate along with different taxes that you would not expect your estate to have to pay.

SPEAKER_01 13:38

And just because you name an executor as someone that's not from BC or Canada even.

SPEAKER_02 13:43

Not from Canada, right? I mean, even if you name an executor from England, I mean there will be other there will be problems. But the good thing about the representation agreement, it because if you're talking about one just dealing with medical decisions, you can name someone outside of British Columbia, outside of Canada, if that is the person closest to you who is best to make medical decisions in your stead.

SPEAKER_01 14:07

Right. So it does bring up uh the I guess the challenge when you're dealing with a representative agreement and a power of attorney, uh, because uh if you're if you're deemed capable of making a decision, you can revoke the power of attorney. Uh a representative can access, perhaps, I presume if you if you will let them your medical records?

SPEAKER_02 14:29

Yes. Uh a representative could access the medical records if you let them. Um and uh the representative has other duties as well. Um for example, what's coming up these days is being put into a care home. A representative can make the decision of which care home someone is to reside in. And that's interesting because that has some overlays with the power of attorney, because someone has to pay for this care home. So the representative and the power of and the person named as a power of attorney should be on side with each other. Because obviously, if the representative puts someone in a home that is too expensive, you know, and and the assets won't last, that's going to be uh a difficult situation. So the power of attorney who has access to the bank accounts needs to be in communications with the medical representative.

SPEAKER_01 15:18

It sounds to me like your your advice would be uh to safeguard the multiple aspects of aging, and as you get to the point where you may not be able to make all of the decisions, you may be able to make some but not all. Sounds to me like uh it's a good idea to have a representative that may be separate from the power of attorney. Is that a reasonable?

SPEAKER_02 15:38

I wouldn't think so. I think one and the same is a good idea. What some people will do is they'll say, well, this child of mine is better in financial decisions, and this child of mine is better in, you know, healthcare decisions, and they switch. So the power of attorney will have child number one as the first attorney and child number two as the second, and the representation agreement will be the opposite. I don't see a big problem with that, as long as as I said, there is communication here. Well, this is a messy area of law, and I'll tell you why. The whole issue of capacity is messy. So having medical capacity does not necessarily mean that you have legal capacity, and vice versa. So to assess legal capacity as to whether someone is able to do a will or revoke a power of attorney or make a new power of attorney, that is a totally different test that a lawyer would do as opposed to what a medical professional would do. To have legal capacity is different than medical capacity, but the other thing that's a huge difference is that someone may be deemed to be medically incapable. But as we know, when people get older and have dementia or have Alzheimer's or other types of diseases like that, they're not totally incapable all the time. They do have these bright moments where they are able to understand what they're doing, understand what assets they have and who they have to give it to. So I think you need people advocating for people who have these types of uh disabilities, uh, mental disabilities, and people who have um age-related um dementia, they have to be advocated for. Just because they get the diagnosis does not mean that they should not be involved in any of their decision making.

SPEAKER_01 17:28

Do you get a uh experience where uh they may not see eye to eye in terms of the tactics that they use, but everybody has the person's best interest or their their mother or father's best interest at heart?

SPEAKER_02 17:40

So the the interesting thing about best interest is something uh that needs to be discussed. When someone is capable of making their decisions, they do not need to have the approval of any of their possible beneficiaries of their estate to deal with their estate, right? So if someone in their lifetime who with capacity wants to sell their assets and give them all the charity, that's their business. So it doesn't become an issue that the courts get involved with unless the person has passed away, and then in British Columbia we have something called WESA, and that is a statute that requires the will maker to consider the duties they have to their beneficiaries. But while you're alive, you don't necessarily have that same duty. And then the issue of capacity comes in, and someone being taken advantage of. So that's a different scenario too. So someone may have lacking capacity, yet perhaps a caregiver, perhaps a family member is taking advantage of that person and is liquidating the estate in order to defeat the beneficiaries that would have been entitled to the estate once the person passes away. That is the biggest gray area we have. Right. So for example, if you have a uh child of an elderly person saying, you know, dad, I need the money, can you please, you know, put 50,000 in my account, write a check for me for 50,000, and then uh the child takes it to the bank, and or there's an e-transfer, even better, no no one has to go into a bank, um, and the father is uh e-transferring money to the child, that 50,000 is gone. You know, so the beneficiaries ultimately will wonder where is this $50,000? Then to go backwards in time and to say, okay, did my parent have capacity to do that transaction at the time they did? That's a very hard thing to prove and disprove.

SPEAKER_01 19:43

So let's uh let's look at it from perhaps a slightly different angle. Uh I see my elderly parent uh befriending somebody else, and I'm not a hundred percent convinced that elderly parent or that that uh I'll call them predator uh uh has the best interest at heart. So what do you suggest uh probably from the perspective of the child for for planning for that possible eventuality or when you actually see that eventuality coming to fruition? So can you sort of take us through that?

SPEAKER_02 20:20

Sure. The question is is there a power of attorney? And if there is a power of attorney, this may be the time to have it invoked. This may be the time to contact the lawyer, if you don't have a copy of it, the lawyer who drafted the power of attorney, expressing your concerns, and then perhaps expressing your concerns to the parent. What the lawyer could do in the circumstances that would make sense is to have the parent in and try to get some answers themselves. The lawyer could call the parent's doctor and also see if there's any concerns. So there is a lot of inquiry that can be done. There's also resources available for a child in that circumstance. So BC Seniors, which is a provincial organization, has information on protection from elder abuse. So that's one of the resources that uh the lawyer could could point the child to. And there's also a new organization called the Cent the Canadian Center for Decision Making Capacity. That's a nonprofit, brand new, dedicated to advancing incapacity literacy. And that's uh something that's going to be moving forward because there seems to be such a huge hole in what's to be done in these situations.

SPEAKER_01 21:44

Uh what's the role, if any, of the public trustee?

SPEAKER_02 21:48

So I'm glad you asked that because I just talked about well, if there's a power of attorney, the lawyer could release it. If there is no power of attorney, then this is where we talk about committeeship.

unknown 21:59

So

SPEAKER_02 22:00

So the public guardian and trustee is a great resource that gets involved if there's no power of attorney and if someone's finances are at a risk of being depleted as a result of abuse or mishandling. And the BC public trustee can work with the family in making a court application for there to be a committee. A lawyer can also help the family in this as well. So a committee would stand in place of an attorney named in a power of attorney.

SPEAKER_01 22:33

Okay.

SPEAKER_02 22:33

The issue with the public guardian and trustee is this while they have a wonderful service for people who don't have anyone to name as their power of attorney. You know, you do name the public guardian trustee as a committee. The issue is the cost of that. So there is a cost for the public guardian and trustee to become involved and to safeguard the person's assets.

SPEAKER_01 22:59

Presumably a scenario whereby uh a new friend comes along and the friend starts to uh inject themselves into an elderly person's life and the child sees this happening and the and this new friend uh, for example, deliberately tries to separate families from decision making. Um seems to me there's not a lot that anybody can do. If the individual, the parent, is deemed to be um capable or had and have the capacity, uh there's there's not much that can be done. Is that a fair comment?

SPEAKER_02 23:38

Well, I did talk about the two resources, right? So we have BC Seniors and also the uh the new resource, the Canadian Center for Decision-Making Capacity, but there's one that we didn't talk about, and that's the police.

unknown 23:50

Right.

SPEAKER_02 23:50

So if you think that your parent, your elderly uh friend is being uh bamboozled, so to speak, there's nothing wrong with contacting the police and asking them to do a wellness check on the person, especially if you feel that you are being cut out from the life of that uh person that you care for, you're not allowed to see them, you're not uh able to talk to them on the phone, um, or you know, let's say their doctor wants to see them, but the patient never calls to make a doctor's appointment, then I think that's a really good avenue to go is through the police.

SPEAKER_01 24:27

Right. Uh thanks for bringing that up because criminality is another dimension to this. Uh I can tell you uh exactly that in the scenario that we're going to bring forward, and which we may not and eventually comment on the specifics of the case, five practitioners in the sphere of influence, from the from a lawyer to daughter to a uh notary public who first discovered the individual, the the predator's attempt to change the to sever the title on this fellow's property. Uh five individuals phoned the RCMP. The RCMP did a wellness check twice. Uh but as the person was deemed capable of making their own decisions and there was no fraud involved, the RCMP were powerless to do anything. Even though they said we'll keep an eye on things, uh their comment was do what you can to stay as close as you can to your parent, but there's not a lot that we can do. Do you have a comment on that at all?

SPEAKER_02 25:34

Unfortunately, that happens. Um and what can be done, I think then you would need to get the public guardian entrustee involved and make an application to court if there's no power of attorney. If there is power of attorney and someone is misusing that power of attorney that they were given by the individual, then a court application can be made to remove that particular person or declare that power of attorney invalid and have another attorney appointed instead or a committee.

SPEAKER_01 26:07

I understand that it is perfectly legal in s in many instances for somebody to s to push someone off title without them ever knowing. So, for example, uh a daughter uh 50% owner of a house with a father, and the father decides that uh he's gonna take his 50% and give it to somebody else. No, the daughter may never know that the title was severed. And that's something that uh I guess I want to make people aware of. That you should all I mean, not much you can do from from what we see. Maybe you can uh tell us something different, but also uh give us a sense of advice on best approaches when you do see somebody that's uh intent on stealing some of the somebody else's estate. Can you talk a little bit about those two things?

SPEAKER_02 26:58

So first the first thing you're asking about is uh title transfers. So if a title is held in the name of A and B, they both have to sign the form transferring part of that title.

SPEAKER_01 27:13

Is that right?

SPEAKER_02 27:14

If it's joint tenants, yeah, they do.

SPEAKER_01 27:15

Okay, what about uh it's it's fifty uh the uh and I again I have to go back to my research. There is another component.

SPEAKER_02 27:22

Yeah, tenants and common and transferring that share. So if it says specifically on title that um A owns fifty percent, I mean they could theoretically transfer that fifty percent without B, who owns fifty percent, knowing, but I think any lawyer would be very reluctant to put that through.

SPEAKER_01 27:41

Right, right. So legally it can happen, but morally it's probably there's level of care that needs to be undertaken.

SPEAKER_02 27:48

I mean, there's always things that can happen that get through the system. And and yeah, uh that's why powers of attorney are also filed at the land title office. Ah. So in the future, if someone tries to sell their property, the power of attorney is already there. So um you can't do it under a different power of attorney.

SPEAKER_01 28:08

Is that an instruction that you would have to give to your your uh estate planner or your lawyer in that instance?

SPEAKER_02 28:13

Usually. And uh and that's quite often the case when someone is trying to uh sell a property and let's say they're going away. Um this happens all the time when someone goes away and they have a sale pending of their condo or their home and they're not gonna be there for the closing date. They do have power of attorney naming someone, but that's just for that specific reason to do the real estate sale, and then we file that power of attorney. So you will see um powers of attorney filed in the land title office for that reason.

SPEAKER_01 28:44

Okay, so if I'm buying a house and I'm doing my records check or my lawyer is doing the records check, that will be flagged as something that would have to come up and be solved before you can transact.

SPEAKER_02 28:55

Yes.

SPEAKER_01 28:56

So if you were sitting down, what would you be uh advising?

SPEAKER_02 29:01

My advice would be for everyone to be on the same page and for the family to know who is named as the power of attorney, who uh is named as the executor of the will. I think everything has to be out in the open in order to best protect any uh elderly people in your life. And um, it's hard because in some families there is family conflict, there's second marriages, those are also uh difficult to handle, third marriages, kids from each marriage, but in order to protect um our family members, everything should be in the open.

SPEAKER_01 29:39

Cool. Is there anything that you want to add uh uh other than what we've talked about in terms of this?

SPEAKER_02 29:46

Some people may think that if uh okay, well, I'm if someone's going to challenge my dad's decision, I'm gonna videotape this and make sure that everyone knows it's fine. Some courts don't allow that type of evidence, the video evidence. It wouldn't be allowed. Uh there's it's very fraught with disaster video evidence, and uh there needs to be consent on all parts. I guess if I was to be you know able to have a magic wand, I would like to see a more streamlined process for getting evidence of capacity. And uh maybe video would come into it. I'd like to see the law reform people perhaps look into this a bit further. Um, but right now, whether someone has capacity is based on so many factors, and not everyone follows the same tests of capacity. So I think there is a place for videotaping, um, and uh but videotaping is also just a moment in time, and it goes back to one of my earlier comments that just because someone has been deemed to have dementia or the beginning of Alzheimer's, it doesn't mean that they have no control over their affairs. Because there are these moments of light. I mean, I had someone come into my office with some very strange ideas of, you know, the fact that they were abducted by aliens once and everything. Does that person have capacity? Well, as long as they knew, you know, what assets they had and who they had it to give it to and what their responsibilities were, yeah, they have capacity, even though they may have some very strange ideas in their head about the way the world works. So, yeah, I think videotaping is something that can be used as a tool, but don't expect it to be admissible in court.

SPEAKER_01 31:32

Right. Uh do the courts uh once I I am I'm once the like changes have been made, does a family have much recourse except to apply to the court and how would they they would engage a lawyer, presumably, and what will be that process?

SPEAKER_02 31:48

As I mentioned, that if someone has uh done a power of attorney unbeknownst to the original uh power of attorney, um then they could go to a lawyer to get the attorney substituted or get the subsequent or the second power of attorney deemed invalid. Right. That can be done. Uh the the difficulty is when there are two different individuals vying to be attorney, and what is a judge to do? Well, then quite often that's where the public RDN entrustee has to come in as well.

SPEAKER_01 32:18

Okay. Uh then the other comment uh around um say capacity, the medical side, uh the it is clear from our story that if uh the group of say uh geriatricians here, or the hospital setting or the uh um VHA setting on the Vancouver Island uh may make a make a decision that says this person is not capable of making decisions on their own. Uh we have the case in point where they went to and paid for another geriatrician's advice, which overrode the first level of advice, which allowed the piece of paper to say they're they're capable of making a decision to bring to the new lawyer to change the power of attorney. I guess there's not much that anybody can do to stop that.

SPEAKER_02 33:06

Sounds like a great lawsuit.

unknown 33:08

Right.

SPEAKER_02 33:09

There isn't much. I mean, geriatricians don't always agree. And as I said, people with dementias do have these moments of when they can pass, you know, any mental tests with great ability and high scores. But, you know, with that being said, their their fridge is full of 80 oranges because they keep thinking they need oranges. So it's such a gray line.

unknown 33:31

Right.

SPEAKER_02 33:32

And that's part of it. And you know what? Also, there's also risk of you know, people giving away their money and falling victims to fraud. And I think that is just evidence that goes towards the diminishing capacity of the individual and why they may not want to handle their own affairs.

SPEAKER_01 33:51

Uh what's the chances of somebody when uh and this is this is my last question, uh, when when these things might have happened uh and then the person passes away, uh, is that the most is that the place you're likely to challenge the results of the estate? And what's the likelihood that you're gonna affect the result?

SPEAKER_02 34:13

It it's an interesting question. It's hard to say the likelihood of you know success. But I'm gonna give you one scenario. Let's say someone leaves money to um uh an individual who's not necessarily uh a family member, but maybe someone who's prying, and uh people who would have inherited, such as their children or their siblings or their parents, however the case may be, are entitled to notice of this will. So when the person passes away, before the will can be probated, um the uh executor has to prove that they've notified the uh children if there are any, or the parents, if there are any, or the siblings if of the deceased before the will can be accepted into probate. So then it's up, it's open that this will is giving this amount of money to this caregiver or this uh person that shouldn't be necessarily in the deceased life. So that that is a safeguard that WESA does uh provide.

SPEAKER_01 35:17

Right, through the probate uh process.

SPEAKER_02 35:19

That's right. And also, you know, uh other beneficiaries have their own checks and balances. For example, if um the will maker is leaving money to a charity and that's part of a will, um the a lot of these charities um don't just sit back and wait to receive the funds. They scrutinize what the executor is doing. So if the executor is not doing their job well, you know, they're going to have to pass their accounts as an executor. And the same thing with a power of attorney, if we move back to that, um a power of attorney, someone named as a power of attorney, can always be asked to pass their accounts as well to make sure that no money is disappearing from the uh person's bank account by virtue of this power of attorney. So there are checks and balances throughout different stages. At the end of the day, though, is it enough? Well, it's hard to say. I think there's always fraudsters that are going around and preying on elderly people, but luckily we do have some community resources, like BC Seniors, for example, that talks about elder abuse and scams and a team approach. Have the lawyer on side, have the doctor on side, have the trusted contact person on side, and they should all know what's going on, and that is the best way to prevent seniors being taken advantage of.

SPEAKER_01 36:52

You've been listening to an original broadcast of Radio Sydney, coming to you from the Mary Wynn Spear Center in downtown Sydney by the sea in beautiful British Columbia. Thanks for listening, and please join us again.