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23 Hélène Marquis LL.L., D. Fisc., F.Pl., TEP Regional Director Tax and Estate Planning CIBC Private Wealth Management Inc. The difficulties begin when the faculties of a senior are diminished but have not reached the level of incapacity required to withdraw the full exercise of their civil rights. There is a huge grey area before homologation of the protection mandate becomes an option. Sadly, general and bank powers of attorney are not designed to mitigate these difficulties, especially difficulties related to financial abuse by family members. How to Assess a Person's Incapacity A person's capacity may be called into question in several situations, such as when they want to draw up a will, consent to medical care or ask for medical assistance in dying. Each of these situations uses specific tests applied by professionals, social workers, psychologists or psychiatrists in a specific setting. What Protection Tools Are Available? The Civil Code of Québec (C.C.Q.) offers several protective regimes, based on the adult's capacity. All the decisions concerning a protected adult must be made in their best interests, to protect their person, the administration of their assets and the exercise of their general rights. 1 General Power of Attorney A general power of attorney is a contract through which the mandatary (attorney in fact, agent or grantee) undertakes to carry out an action on behalf of the mandator (principal or grantor). It is a private contract between two people. When accepting the power of attorney, the mandatary must act with prudence, diligence, honesty and loyalty to the best interests of the mandator. This does not make it a protective regime, however, because the mandator is not a protected adult. It is a person who is presumed to be capable of exercising their rights, including the right to allow a mandatary to do so on their behalf. Theoretically, actions taken by the mandatary under the terms of the power of attorney are taken with the consent and support of the mandator. Therefore, even though it may seem abusive to you that Anita is drawing freely on her father's accounts, since he does not complain or withdraw the power of attorney, he supposedly agrees. There is, therefore, some danger for seniors who give power of attorney to a single person with no possibility of oversight. LEGAL CAPACITY OF SENIORS Clément has been your client for several years. At 85, he is in good physical shape. His protection mandate designates his daughter, Anita, and his son, Maxime, as mandataries to the person and to the property. Under pressure from Anita, Clément agreed to sign a bank power of attorney and a simple power of attorney, so she can take care of his finances. For a few months now, Clément has sometimes shown confusion and a bit of memory loss, but there is nothing serious enough to trigger the homologation of his protection mandate. Meanwhile, Anita is regularly asking for sums of money that do not seem to reflect your client's usual cost of living. How can you manage this situation without upsetting Clément or pushing Anita to move everything to a competitor? Demographic changes related to the aging of the population have significant consequences for the legal status of seniors. Unfortunately, experience tells us that protection mandates and powers of attorney do not resolve all the financial management problems generated by the gradual loss of cognitive capacity many seniors experience. What is Legal Capacity? In Québec, except by express provision of law or by a judgment ordering the institution of protective supervision, anyone 18 or over is presumed to be fit to fully exercise their civil rights. Moreover, no one can renounce the exercise of their rights except to the extent consistent with public order. Legal capacity is therefore the rule, and incapacity is an exceptional situation governed by strict legislative conditions. FEATURE ARTICLE 1 Ss. 256 et seq. C.C.Q.

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