Hello Dear Readers,
It has been a while since I last wrote a post on this blog. Things just picked up a lot in my practice and, as a result, my blog had to take a back seat for a while. I am glad to say that things aren’t slowing down, but I would like to get back into posting regularly on my blog – one of my “mid-year” resolutions, I guess.
So to kick things off, I thought I would write a two-part series on elder mistreatment (more commonly referred to as “Elder Abuse”, but I prefer the current trend of referring to Elder Mistreatment as opposed to elder abuse – it covers a larger variety and different forms of mistreatment). For this two-part series, I will draw on the highly mediatized Brooke Astor and Anthony Marshall Saga, which recently came to a conclusion. But first, a short preamble:
For anyone who has visited my website and who has already read some of my previous blog posts, it is probably fairly obvious that the issue of elder mistreatment is a topic which I hold very near and dear to my heart – it is, after all, the reason for which I returned to University in order to study law. To make a long story short, I decided to go to law school because I felt that, as an attorney or as a Quebec Notary, I would be better placed to prevent and help combat this type of elder mistreatment.
Now for a brief summary of the Brooke Astor and Anthony Marshall Saga that recently came to a conclusion:
The story goes as follows: Brooke Astor was a New York socialite and a great philanthropist. During the last years of her life, she experienced certain cognitive deficits due to Alzheimer’s Disease. By 2000, Brooke was diagnosed with full onset dementia due to Alzheimers and her son, Tony Marshall, was aware of this. It was at this time that, allegedly, he became focused on providing for his wife, whom his mother had always disliked. He already exercised Power of Attorney over his mother’s assets together with an Attorney and he convinced the attorney, at the time his mother was already experiencing serious cognitive deficits, to raise Tony’s yearly remuneration by 5% (for administration of a charitable trust that Brooke Astor had established).
Furthermore, even after being diagnosed with full onset dementia, the Attorney who exercised Power of Attorney with Tony is deemed to have approved a gift of one of Brooke’s beloved summer homes to Tony, based on the fact that this was Brooke’s desire – Tony then gifted this property to his wife, only six months later. Only a few months later, this same Attorney (who exercised Power of Attorney over Brooke Astor’s property with Anthony Marshall) allegedly justified executing a Deed of Gift, whereby Brooke gifted 5 million dollars to Anthony, in order to ensure that his wife – whom Brooke Astor always disliked – was well provided for.
Finally, Brooke had originally drafted a Last Will and Testament in 1998, when she was still of sound mind, whereby she bequeathed the funds in the Astor Trust to various charitable causes – thereby excluding her son, Anthony, from this large part of her estate. Anthony had an attorney draft and execute a Codicil to her Last Will and Testament, whereby she bequeathed 49% of these proceeds directly to Anthony – even though it was clear, from the facts, that Brooke Astor was, at that time, cognitively incapable of understanding the impact of such a document. Anthony then hired another attorney to execute a Second Codicil, by virtue of which Brooke Astor bequeathed the entire estate to her son, Anthony, which, according to reports, seems to have been entirely contrary to her last wishes.
I have only mentioned the most salient facts of the story for the purposes of this blog post, to get more information and details of this saga, please visit the following web page: http://www.estateofdenial.com/2008/09/23/brooke-astors-story-part-2/. I just wanted to give you the most important background information before I move forward.
I realize that case took place in New York, where the laws are different, but there are many elements to this case that I wish to tackle and which can be directly applicable to attorneys and, especially, Quebec Notaries.
When is it okay for someone to sell/gift/transfer someone else’s property by Power of Attorney? : In the Brooke Astor case, Brooke was allegedly deemed by her doctors to be incapable, cognitively, due to full onset dementia (brought on by Alzheimers). Her attorney, however (the one who exercised Power of Attorney with Brooke’s son, Anthony) nevertheless gifted large sums of money and the summer home in Maine to Brooke’s son. These actions, in themselves, bring up so many red flags and demonstrate a clear case of elder mistreatment.
- A person needs to have the required capacity in order to be able to take part in a contract : In Quebec, when a person is deemed to be no longer able to take care of his/her finances and/or his/her person (i.e. medical and housing decisions), they need to be represented by a third party. In the event the person left a Protective Mandate (AKA a Mandate in case of Incapacity) (while still capable of making decisions), the appointed mandatary would motion the court to formally declare the Mandator (the person having executed the Mandate and who is now deemed no longer able to make decisions) incapable and formally appoint them as mandatary to the said incapable person (known as The homologation of a Mandate) – if any specific instructions were left by said person in the mandate (i.e. regarding administration of funds; where the person wishes to be housed, etc.), these instructions would need to be followed by the mandatary(ies), as long as they are not against public order (i.e. as long as the instructions don’t require the mandatory to commit fraud, etc.). In the event said person did not already have a Protective Mandate, executed while said person was still deemed cognitively capable, one or several person(s) would need to be appointed by the court in order to represent the said person and a tutorship council would need to be formed in order to oversee the appointed representative’s administration (this procedure, applicable when there is no Protective Mandate to homologate, is known as Opening of a Protective Supervision). I will not elaborate further on these procedures (I will save these explanations for another blog post), but the important thing to retain is that there is a court procedure that is involved in declaring a person legally incapable with regards to finances and/or their person, which can take several months and which is subject to medical and psychosocial evaluations. Any contracts entered into by said person from the time at which he/she is deemed to no longer be capable of making decisions with regards to finances and/or their person (often times, this date is determined by a physician) could therefore be struck down, in the event that such transactions can be proven to have been caused prejudice to the said person. What’s more, it is seriously frowned upon for any attorney and/or Quebec notary to proceed to liquidating/transferring/gifting said person’s assets during this time, without (a) written documentation from the said person’s physician, attesting to the fact that said person has the required capacity in order to execute such a deed and (b) the notary and/or attorney witnessing, personally, that the said person understands the deed in which he/she is entering into. What is of great concern in the Astor-Marhsall case is the fact that sums of money and a summer house were gifted to a person who also exercised Power of Attorney (clearly, a conflict of interest). I can safely say that Quebec Notaries would exercise a lot of caution before accepting a “general power of attorney” in order to execute such transactions (i.e. transfer of property, gifts of large sums of money). With regards to the sale of a house, for example, I, as a Quebec Notary, would never accept a general power of attorney – I would require a Specific Power of Attorney and, attestation to the effect that the person signing the Power of Attorney understands the impacts and the powers that he/she is conferring upon another peson. What I mean by a Specific Power of Attorney is the following: it would need to be a document (preferably, if in Quebec, done before a Notary) whereby the Constituent (the person granting the Power of Attorney) states that she/he authorizes “X” person to sell “Y” property to “Z” person for “XX” price – every essential detail which would be included in the Deed of Sale/Deed of Transfer/Deed of Gift would also be included in the Power of Attorney, so that there is no ambiguity and so that that Deed could never be struck down in the future. In the Astor-Marshall case, I find it extremely troubling that the attorney in question felt comfortable executing such transactions, even though full onset dementia had been clearly documented by Brooke’s attending physician – it is extremely surprising and equally disappointing.
- Can we have someone else’s Last Will and Testament changed, because “we know what they would have wanted” or because “It is the right thing to do”?: In summary, NO. The only person who can change their Last Will and Testament is the Testator/Testatrix (the person executing the Will) himself/herself. There is no one who can take it upon themselves to change someone’s last wishes, solely because “it is what they would have wanted” – you just can’t do it. Furthermore, in order for someone to execute or change their Last Will and Testament, they will need to have the required cognitive abilities to understand that which they are signing. As regards the Quebec Civil Code and the requires formalities for a will to be considered valid, the following comments apply:
- Notarial Wills require the signature of the Testator/Testatrix, one witness (who is there to witnesses the signature of the Testator/Testatrix and the fact that the document clearly states the Testator’s/Testatrix’s last wishes – the witness is not required to hear the contents of the Last Will and Testament) and, finally, the notary’s signature. As regards the witness, he/she cannot be one of the heirs/legatees – if such is the case, the entire will does not become invalid, but that particular legacy (made to the witness) does become invalid. Furthermore, a will cannot be done under duress – if a Notary meets a client with one of the heirs and does not take the time to meet alone with the client to verify his/her last wishes, it could be deemed that the will was done under “captation” (under the influence of the said heir/legatee) and could be contested on such grounds. Recent jurisprudence has shown the courts to be hard on notaries having executed wills in similar situations. This having been said, there are situations where the client might only feel comfortable speaking with the Notary and/or lawyer, in the presence of a loved one that he/she trusts, and this might be okay. We just really need to be careful and exercise good judgment. In the event the client wishes to change their will completely to disinherit one child in favour of the other child who is present with the client at the time of the meeting with the Notary, I would advise to take the time to meet alone with the client and have a very well documented file, because it is highly likely that this type of will be contested. Things should be considered on a case by case basis.
- It is not because you are appointed someone’s legal representative/mandatary/curator (etc.) that you have carte blanche to do whatever you please. Whether you are appointed someone’s representative by virtue of a power of attorney, a mandate which has been homologated, or by the institution of a protective supervision regime, this does not give you any powers over the person you are representing – it imposes certain duties as regards the said person. I recently had a discussion with a prominent lawyer who practices exclusively in the area of elder law on this topic and I believe that this is a very important distinction to make – we need to make sure to respect the wishes of the person whom we are representing for as long as possible. Also, it is not because a person is deemed incapable of making financial and personal decisions that they are no longer able to express their wishes – for those of you whom have had a loved one affected by dementia, you would have noticed that there are some “good days” when he/she was quite capable and some “bad days” when he/she was not capable of making decisions – I am not saying to go along with everything, I am just asking that we take the opinion of the person we are representing into consideration.
I feel it is necessary to end this blog post on this last important note that I just made – hopefully, the message will start being received and certain preconceived notions we have in society will start to shift.
Please stay tuned for the continuation of this blog post – it will hopefully be up by next week!
Also, please feel free to post any questions and/or comments you might have.
Anna Kamateros, notaire, Notary
B.S.W., LL.B., D.D.N
Disclaimer: This post does not constitute legal advice, nor does it establish a notary-client relationship. If you require any legal advice, please feel free to contact the Mtre. Anna Kamateros, Notary, directly.