Montreal's senior monthly since 1986

Feb '10

Columns

Property concerns: be an honest seller and a cautious buyer

The time has come to sell your house. You find a real-estate agent, she finds a buyer, you negotiate price, decide on the date of transferring possession, and finally the offer to purchase is signed. Now only the appointment at the notary’s office remains and all will be done – or so you believe. However, this may not be so.

As a seller, you are bound to guarantee the buyer that the property is free of latent defects. A latent defect is one that is not apparent to a prudent and diligent purchaser and is such that the buyer would not have bought or paid the price had he been aware of its existence.

In a case where potential purchasers noticed some window repairs and the seller told them there had been water leakage but everything had been fixed and there were no more problems, the sale took place. After moving in, they noticed a smell in the house. An expert was hired, a few holes were drilled and evidence of animal excrement, insulation deterioration, and mould was found. Also, water leakage was noticed near the roof and exposed wires were discovered between the garage and the house.

The buyers went to court claiming a diminution of the sale price equal to the cost of effecting repairs, the cost of their expert, and $10,000 for their trouble and inconvenience. The court held that the pre-purchase visual examination of the property did not permit one to see inside the walls. Moreover, there was no obligation to open the walls. The existence of rodents in the walls constituted a latent defect. Furthermore, because the seller had created a false sense of security for the buyers by telling them that the problem of water infiltration had been remedied, the judge held that this reassurance had the effect of changing an otherwise apparent defect into a latent defect. The buyers were granted damages to repair the water leakage, the situation inside the walls, and their expert’s fees. They were also granted $4,000 in damages for trouble and inconvenience on the ground that the seller could not possibly have been unaware of the existence of the rodents.

In another case, the seller advised the potential buyers that he had experienced sewer backup a couple of years earlier and had installed a pump and trap. He also told them that he had noticed a small trickle of water in the basement and bathrooms when it rained and when the snow melted. He also said that the property had never been flooded.

The buyers had the property inspected by an expert twice before signing the deed of purchase early in the summer and neither expert found any significant defect. A week after moving in, they noticed water coming in through the drain in the room with the hot-water heater. About a month later, they noticed mould and moisture between the floor and the wall of a bedroom in the basement.

A specialist was called in and concluded that the basement drain had to be replaced and that underground water flowed toward the floor. It was now late summer and the buyers wrote the seller, putting him in default to make the necessary repairs. Between the spring of the following year and the beginning of January of the next year, the new owners experienced four water infiltrations in the basement when there was heavy rain or melting snow. They claimed a substantial reduction in the purchase price for the property as well as damages on the ground that they had been misled by the seller, who had given them false information to reassure them. The seller said they had failed to act as prudent and diligent buyers.

The court accepted that the basement had important water infiltration and flooding problems, which could not have been discerned even by diligent inspection of the property. Furthermore, there was proof that the seller knew the main drain in the basement needed to be replaced and that there was a problem with water flowing toward the house. He also knew that water infiltration occurred regularly.

The judge stated that the seller is obliged to reveal completely and exhaustively to the buyer all the facts of which he is aware that pose a risk to the buyer’s peaceful or useful enjoyment of the property. The lack of a system of drainage under the floor, the ineffectiveness of the pump and the flow of underground water, which caused humidity and mould, constituted latent defects sufficiently serious to validate the buyer’s action against the seller. The buyers were awarded a substantial sum for repairs, an amount to pay their expert’s fees and the sum of $5,000 as damages for trouble and inconvenience.

In the two cases presented above, the seller was obliged to pay damages for trouble and inconvenience as well as for repairs. These extra damage awards are given when a seller is aware or could not have been unaware of the defects. Where a seller had effected aesthetic repairs that had the effect of blocking access to the attic and camouflaging rot marks, she was ordered to reimburse part of the sale price as well as for experts and a portion of the buyer’s extra-judicial legal fees.

So we see that failure to be completely open and honest about problems concerning the house you are selling can lead to headaches in the future.

Quebec law does not contain a “buyer beware” provision, at least with regard to latent defects, and a seller can find himself responsible for latent defects that exist at the time of the sale even when he knew nothing about them prior to the sale. However, the purchaser also has certain responsibilities. We will look at those next month.

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If you don’t have a will, your loved ones may inherit complications

A will is a formal document that specifies how you want to dispose of all or part of your assets upon death. In order to be valid it must be drawn up according to specific provisions found in the Quebec Civil Code. A will can only be signed by one person; it cannot be shared.

You can go to a lawyer or notary for a will or you can write one yourself, called a holograph will.

A lawyer’s will is called “a will made in the presence of witnesses.” It must be signed in the presence of two witnesses who cannot benefit under the will. In order to take effect after death, it must be probated. This is a process by which the will is deposited into and examined by the court, which can take a few weeks. The original of the will is retained by the court and certified copies are issued upon request.

A notary’s will does not require probate and can be used immediately after death. Copies are provided by the notary upon request.

The holograph will must be hand-written in its entirety and signed by the testator himself. It, too, is subject to probate after death.

The principal provisions of a will are those in which you state to whom you wish to leave your property. One or more people may be designated, as well as charitable organizations. You may want to leave everything to one person or a certain portion to each of several people. You may wish to make specific bequests. In certain situations it might be advisable to set up a trust fund or to delay the payment of a legacy or to bequeath capital to one person and let another benefit from the interest. In some cases these are easy decisions to make, but in others they can be more complex, such as when there is property in another country, when matrimonial laws limit property ownership, when minor children are involved or in cases of combined families or common-law relationships.

Sometimes it may help to discuss the situation with a lawyer, notary or accountant as there may be tax implications involved as well. In your will you must also designate someone to carry out your wishes. In Quebec that person is called a “liquidator.” In other places he is usually referred to as an executor. You can name one or more persons, a trust company or both. The person you name can be an heir or not. You can provide for payment of your liquidator and for his replacement in the event he can no longer act. You can give your liquidator greater power than he has in law. For example, if you own an apartment building, the law permits him to operate and maintain it, but not to sell or mortgage it unless you give him the power to do so. Everyone with any assets at all should have a will, especially those with family responsibilities.

Wills should be reviewed whenever your family or financial situation changes. Changes in your situation do not necessarily mean your will must be redone. It can be altered with a codicil, a document that alters a small part of the will and leaves the balance untouched. It, too, must follow one of the forms indicated above.

If you do not have a will, the laws of intestate succession will be applied to your estate when you die.

Your heirs fall into categories: your spouse, which means the person to whom you are legally married and does not include someone with whom you are living common law; your descendants, which includes all children, even those from an earlier marriage with whom you have had no connection for many years; privileged ascendants, namely parents; privileged collaterals, namely brothers and sisters, and ordinary ascendants and collaterals, in other words, distant relatives. Contrary to popular belief, if you have no will, your spouse does not automatically inherit your entire estate upon your death. It is only in cases where you have no descendants, privileged ascendants or privileged collaterals that your spouse inherits your entire estate. If you have a spouse and descendants, your spouse inherits one third of your estate and your descendants inherit the balance. If you have a spouse and privileged ascendants or collaterals, your spouse inherits two thirds of your estate. If the surviving relatives are more distant, the rules become more complex. And remember, if you have a common-law spouse and distant relatives whom you haven’t seen in years, the latter will inherit unless you have willed it otherwise.

There are other problems as well when no will exists. Namely, who will act as liquidator? Who will find those distant relations? Who will administer or wind up your business? What will happen to the person with whom you’ve been living as husband or wife for many years? As a last resort, if you have no will and no relatives, the Minister of Revenue steps in and winds up your estate. Your assets and possessions may ultimately become the property of the Province of Quebec.

Correction: In last month’s column on leases an editing error altered the following paragraph, which should have read: “Two problems can arise here. First, is the delay provided in the notice to be counted from the day it is sent or the day it is received? The current law is from the day it is received.”

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Let's clear up some common landlord-tenant issues

October, 2009

The incident described by Bonnie Sandler on Page 11 concerns an elderly man who found himself in a stressful situation, was intimidated by his landlord and unaware of his rights. How does the law help him? What tools are available for him?

When landlord-tenant problems cannot be resolved amicably, they are decided by the Rental Board. The board plays a crucial role in the relationship between the landlord and tenant. For example, the board provides form leases that landlords must use. A further document used by long-term care residences that covers services offered by such residences is also provided by the Rental Board, and its use is mandatory as well.

The most frequent problems that arise concern the yearly notices from landlords regarding rent increases and the notices given by tenants when they are obliged to move permanently to long-term care residences or foster homes. It was in this latter situation that Bonnie’s client found himself.

If it becomes necessary to move to a residence, the law permits you to break your lease, but there are conditions. Sometimes the landlord and tenant can come to an agreement as to a specific date by which the lease will end and the tenant will vacate. If there is no agreement, the lease, assuming it is a one-year lease, will end three months after a notice is given to the landlord. If the term of the lease is less than one year or if there is no definite term of lease, the notice is one month. The notice must always be accompanied by an official document attesting that the move is necessary. Having given the notice and still paying rent, the tenant has a right to remain in the apartment for three months. He can move before the delay expires, but it is his right to remain.

The landlord, who is obliged to break the lease, has a right to the three months’ notice and three months’ rent even if the tenant chooses to move before the delay is up.

Bonnie’s client was obliged to move to a seniors’ residence while his lease was still in force. He had given the required three months’ notice and therefore had a right to retain possession of the premises and to leave his things there for the full three months even though he had gone to live elsewhere.

Problems can also occur with the landlord’s notice of modifications to the lease, which may include a rent increase. To modify a one-year lease, the landlord must give the tenant at least three months’ notice and no more than six months. This provision has been held to be of public order. This means that notices given outside these delays are not valid. If no notice is given, the lease will automatically renew for one year with no changes. Two problems can arise here. Firstly, is the delay provided in the notice to be counted from the day the notice is sent or the day it is received? The current law is from the day it is received. Therefore, if you are the landlord, make sure your notice has been received by your tenant.

Second, what if the notice comes outside the delay, but you answer it and agree to a rent increase which is less than that proposed by the landlord? There are two possible answers to this question. One is that the notice was invalid to begin with and the lease was therefore automatically renewed at the same rent and on the same conditions. The other is that your response means you have tacitly accepted the notice as given thereby renouncing your right to three months of notice and agreeing to a certain amount of increase, although not the full amount suggested by the landlord. In either case, if the landlord is unsatisfied with the situation, he will have to go before the Rental Board to resolve it.

Some other things to remember are that the landlord must give you a copy of the lease within ten days of your signing it. He must also give you a written copy of any modifications to the original lease prior to the beginning of any renewal period. If you are renting for the first time, the landlord must advise you of the lowest rent paid for the premises within the preceding 12-month period or of the rent fixed by the Rental Board during that same period. If the rent he has demanded from you is excessive, you have the right to go to the Rental Board to have it reduced. If you are the spouse or relative of the tenant whose name appears on the lease, you can stay on if the tenant moves out, and the lease will be transferred to you – as long as you notify the landlord within two months.

In case of a tenant’s death, the lease can be cancelled by giving the landlord three months’ notice within six months of the death. A person who has been living with the deceased can have the lease transferred to himself by advising the landlord within two months of the death. If that person fails to give notice, the liquidator of the estate or an heir can give one month’s notice after the expiration of the two months in order to cancel the lease.

A final question to be addressed is what happens when the tenant is made to feel intimidated, as in the case of Bonnie’s client. Where fear induces someone to enter into a lease, that lease can be annulled. The law is specific: “Fear induced by an abusive exercise of a right or power or by the threat of such exercise vitiates consent.”

All contracts, including leases, as well as obligations undertaken, require valid consent be given. Where consent is obtained by intimidation it isn’t valid and any act performed as a result can be annulled by a court of law.

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Who decides what treatment is best for us

September, 2009

The Supreme Court of Canada rerecently decided that adolescents should have a say regarding serious medical decisions that affect them, as long as they have the maturity to do so. The issue was discussed in the case of a 14-year-old girl upon whom life-saving blood transfusions had been imposed after she had refused them for religious reasons.

The court held that although it is wrong to deny a person a say in what happens to her on the grounds of age alone, the teenager in this case did not have the capacity to exercise her judgment in a mature fashion and the forced transfusions were justified.

Our fundamental right to make decisions concerning our own bodies must be balanced against the obligation of society to protect its valuable citizens. The protection of a vulnerable citizen, in this case a minor, superseded her right to make a decision concerning her own body. How then do we apply these same principles to “golden agers?”

The Quebec Civil Code states very clearly that every person is inviolable and is entitled to the integrity of his person. What this means is that, as long as you are not a danger to yourself or to society, no one may interfere with you without your free and enlightened consent. You must know and understand what it is that you are consenting to or refusing, and your consent must not be forced on you by anyone.

The Canadian Medical Association’s Code of Ethics sets out physicians’ obligation to provide their patients with all the information necessary to consent or not to medical procedures, and instructs physicians to “respect the right of a competent patient to accept or reject any medical care recommended.” No one can be forced to undergo care of any nature, whether it be an examination, specimen taking, tissue removal, or treatment, whether medical, psychological or social. Just because a person is ill does not mean he lacks capacity. If a person is competent, he is the best judge of what is in his own best interest. The will of the individual supersedes everything. That is our law — and it also applies to situations involving assisted living and moving into care establishments of varying types.

So, what if we are competent and perfectly capable of making our own decisions and, in that context, we decide we do not want medical treatment even though we are ill and the treatment is recommended by our doctor? What if we do not want to go into a home or a residence but others are pushing us to do so? Must we listen to those around us, or do we have a right to decide for ourselves?

There have been cases where a hospital, physician or relative has applied for a court order to force treatment upon a patient. However, if we understand the nature of our condition and the purpose of the suggested treatment and are able to foresee the possible consequences of refusing the treatment, we are considered competent and able to decide for ourselves. The courts have held that just because a patient disagrees with her physician with regard to her care, it does not mean she is incompetent. What is important is that she understand the possible consequences of her decision.

Placement in a residence or institution is considered part of treatment, so as long as you are competent you cannot be forced to go into one. However, where the court found a patient minimized the nature of her illness and did not understand the benefits of supervised accommodation or the risks of living on her own, an order for placement was granted. In another case where both an order for treatment and an order to force a patient into a residence were requested, the court granted the treatment order on the grounds the patient did not fully understand the nature of her condition or the necessity of the treatment. However, it refused to grant an order for placement as it predicted that after treatment the patient would be able to leave the hospital and return home. In yet another case a hospital patient with incurable cancer refused to go to a long-term care establishment and expressed her desire to return to her home. This patient understood her medical condition and the judge stated that her right to self-determination included the right to refuse placement. The hospital’s request was rejected.

So, should we listen to those around us or decide for ourselves? The answer is: both. We should listen to those advising us and then have the courage to decide for ourselves.

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If you have no mandate, who will act on your behalf?

July 2009

Why should you have a mandate in the event of incapacity and why is there so often resistance to making one? You should have one to protect yourself as well as to make life easier for those close to you.

The cause of the resistance is twofold. First, the thought of turning over the control of one’s assets to someone else can be frightening; second, no one wants to imagine that their faculties will ever be so impaired as to require someone else to act on their behalf.

It’s important to understand that the mandate in the event of incapacity does not take effect until a state of incapacity is shown to exist, and such a mandate only takes effect once a person’s mental faculties are impaired. Incapacity can result from such degenerative diseases as Alzheimer’s, a head injury or a mental illness or handicap.

The assessment to establish whether or not incapacity exists is carried out by a physician and a social worker, both of whom must prepare and sign reports that attest to the person’s condition. Once the incapacity has been assessed, the court will study the reports and verify both the incapacity of the person and the validity of the mandate itself. This provides protection to the person and ensures that no one who is in fact capable of caring for himself and his assets is declared unable to do so. The question to be addressed is: What happens when a person without a mandate is no longer capable of caring for himself or managing his affairs? That person will be declared in need of protection and placed under what is called “protective supervision.”

Protective supervision is established to ensure the protection of both the person and his assets by naming a curator to act for him, to take care of him and to administer his assets. But whereas in the case of a mandate the person himself has named who it is that he wants to carry out these duties,where there is no mandate, no one has been named and someone must be chosen by other people. This is done by calling a meeting of at least five relatives. Where there are not a sufficient number of family members available, friends can be called. Ideally, those at the meeting may be in agreement as to who should be named, but if they are not, family feuds can result.

The court ratifies the opening of the regime of protective supervision, relying on the same medical and psycho-social reports as in the case of mandate, as well as on the advice of those attending the meeting of relatives or friends. In some cases, one person is named to care for the person and another for the assets.

Whoever is named,he will have a harder time than a mandatory would as he will be under the surveillance of the Public Curator. He will be obliged to submit an opening inventory of the assets he is to administer and furnish a guarantee if the assets are worth more than $25,000, as well as proof of such a guarantee. He will be obliged to send an annual accounting of his management to the Public Curator. If the assets are worth more than $100,000 he may be required to have an audit done. This is expensive and will be paid for out of the assets. A mandatary does not have to assume all these obligations.

Furthermore, although your curator has full administration over your assets, he can only perform such acts as are permitted by law and they may not include your particular wishes. For example, you may have been helping a grandchild get through university by providing certain sums of money. In a mandate you can stipulate that you wish such support to continue. Without a mandate, your curator will not have the power to use your money for anything other than your needs and would therefore be unable to continue the support of the grandchild. Finally, what happens if there is no one to act as your curator? Then the job is taken over by the Public Curator. In 2007, the Public Curator of Quebec was overseeing the protection of 11,000 adults who had been declared incapable, 58 per cent of whom were over 65 years of age.

The question we should all ask ourselves is: Should I have a stroke or become otherwise incapacitated, would I rather let others choose who will care for me and my assets or would I prefer to make my own choices now and protect myself while I can?

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Parent support – a legal obligation

June 2009

We all know of the quarrels that go on regarding child support, especially in the context of divorces. But once children reach adulthood, what financial support do they owe their parents?

Under Quebec law, parents and children owe each other support where there is a need. So, do parents ever sue their children for support? Yes. Are they successful? Sometimes.

The support you owe your children when they are young is an all-embracing maintenance that includes educating and feeding them as well as providing them with a certain lifestyle. The support your children owe you is that necessary to provide you with the bare necessities when you are not capable of providing them for yourself. Any help awarded by the court will take into consideration the needs and circumstances of all parties and the time necessary for the parent to acquire sufficient autonomy to support him or herself.

A 52-year-old mother who was no longer working and was about to be evicted from her apartment sued her three sons for support. She had sold her house and moved to the city, which she couldn’t afford, without any thought to the future. Her children had forewarned her that they would stop all financial help. The court held that she was capable of working and had an obligation to support herself. However, it would take her some time to find work and she could not be left destitute. The judge ordered the sons to pay support for four and a half months, in an amount commensurate with their ability to pay, and to pay their mother’s back rent. He also ordered the mother not to bother them directly or indirectly by telephone, correspondence or otherwise under pain of contempt. The judge was apologetic about his judgment and explained to the sons that it was a matter of justice and he dared hope they would understand his thinking on the matter.

In another case, a mother claimed support from her four children. She had been receiving alimony from her ex-husband, who had moved to the United States. She was receiving a disability pension and had received cash amounts at the time of her divorce. She had a house, but refused to sell it and she continued to spend compulsively, incurring large credit card debts. One of her children had loaned her money to help pay her debts; the others didn’t have the means to do so. The court held she should sell her house and use the money either to supplement her pension or to chase after her ex-husband. Her motion for assistance from her children was denied.

Whether or not a parent will be successful in claiming support from a child will depend on the circumstances. But if the right to make such a claim does exist and the child against whom it can be or has been made predeceases the parent, the right will survive the death of the child. This means that if a child who has been helping you out financially, or has an obligation to do so, should pass away leaving his assets to those other than you, you have a right to claim financial help from the estate. This must be done within six months of the death.

A child can fulfill his obligation toward his parent by taking that parent into his home. One mother was receiving financial assistance from three of her children who were no longer able to continue supporting her. She then asked for social assistance and instituted proceedings against her two remaining children, who were better off. One of those children, a son, offered to take his mother into his home. The mother didn’t want this, saying that living with him would be intolerable as she would have no privacy. The judge found this was not a sufficient reason to refuse his offer and held the son’s obligation would be fulfilled by taking his mother into his home and providing her food. He ordered the remaining children to pay support to their mother in amounts commensurate with their means.

Most of us hope we will never need our children’s financial help, and we hope they love us enough to offer it if we do. However, it is comforting to know that a court can order it should it ever become necessary.

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Stand up for your health care rights, but don’t abuse them

May, 2009

You are wearing a hospital gown, sitting in a wheelchair at the hospital, being ignored. You probably feel vulnerable and powerless. But you are not: The law has provided you with rights. The Quebec Health and Social Services Act states its intention to protect you and ensure your recovery and return to good health. To this end, those who provide health and social services are required to respect you and recognize your rights, to treat you with courtesy, fairness and understanding and to permit you to participate in decisions concerning your health and welfare. The services you receive must be appropriate not only from a scientific point of view but also from a humane and social point of view. They must be continual, personalized (appropriate for your particular health needs) and safe. You, in turn, have an obligation to refrain from abusing these services.

Your right to care and respect and the hospital’s obligation to provide appropriate services are both deeply ingrained in our law. You have a right to choose your own physician, and you cannot be refused treatment for any reason considered discriminatory under the Quebec Charter of Human Rights and Freedoms, such as race, colour, sex, sexual orientation, age, religion, language, ethnic or national origin, social condition or handicap.

You have a right to be informed of your state of health and to be advised of your treatment options as well as of the risks and consequences associated with each one so that you have the information necessary to either consent to or refuse treatment. You cannot be treated – or even examined – unless you consent.

In a recent case a very sick 62-year-old patient who routinely failed to follow physicians’ instructions or undergo treatment contested the hospital’s efforts to force her to be admitted. Although it was established that hospitalization would be beneficial and that it was dangerous to her health for her to return home, the judge held that the patient had the capacity to decide for herself and therefore the right to refuse treatment, even at risk to her life. The hospital’s request to force hospitalization was refused.

It is important to remember that a hospital’s obligations are subject to available resources, both human and financial. An institution has the right to organize its services in accordance with those resources, so a lack of resources can sometimes justify a hospital’s refusal to keep a patient.

So what happens to a patient when the institution says he must leave? The law states that the patient must leave as soon as he receives his notice to do so. However, the law also provides that he can only be forced to leave if his condition permits him to return home or he is assured of a place in another establishment that can give him the services he requires.

When a 71-year-old man requiring four hours of care daily was informed by the establishment in which he had been residing for seven years that he would be temporarily transferred out until permanent accommodation could be found elsewhere, he objected to the transfer and invoked his right to choose where he wished to go. The court accepted the fact that his current residence could no longer provide the care he required, but the judge said the reasons for his objection were reasonable and held that the decision to transfer him temporarily was arbitrary and could not be up held. The residence was ordered to keep him until he could be transferred to a place he deemed acceptable.

In another case, a 29-year-old man, almost completely paralyzed as the result of an accident, had been hospitalized for almost seven years. All his needs, physical, psychological and social, were being met and he was content. The hospital wanted to transfer him to a longterm care facility and he contested on the grounds that such a move would violate his right to obtain services from the institution of his choice. In this case the court held that his rights were not absolute and the hospital’s resources justified its putting a limit on the patient’s rights. The hospital was a short-term care institution with a limited number of beds, so patients had to be transferred to longterm care institutions as soon as possible. Another place that could provide continuity of care was available, so the court ordered the transfer.

What do you do if you feel you have been unfairly treated and your rights have been violated? Every health institution has a complaint procedure, and many have an ombudsman. You have the right, the power and the means to complain.

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Mandates, wills, living wills and more: what, how, and why

April, 2009

As the population ages we hear more talk of wills, mandates, powers of attorney, mandates in the event of incapacity, and living wills. WHAT are they? WHAT is the difference between them? WHY should you have them? HOW do you get them? WHAT happens if you don't have them?

The will is a document that states what you want done with your possessions and savings (your estate) after you die and names the person you want to carry out those wishes. In your will you can give someone the right to continue residing in your home, you can have one person benefit from the income of your estate while another inherits the capital, and you can donate specific objects or amounts to specific individuals or charities while someone else receives the bulk of your estate.

If you do not have a will, the law will decide how your estate is to be distributed. Many people feel that even if they do not have a will, their spouse will be protected and inherit their estate. This is not so; the spouse does not necessarily inherit the entire estate, but may have to share it with children, siblings and parents. Without a will, there is no one named to administer the estate. You can write out your will by hand, date it and sign it and it will be valid when probated; or you can have one drawn up by a notary or lawyer. The important thing to remember is that the will only takes effect upon death.

The living will is a contradiction in terms as it takes effect while you are living but unable to state your wishes. The law provides that you cannot be forced to undergo medical treatment without your consent. If you are unable to consent to treatment for whatever reason, such as illness or an accident, a close relative or your representative, designated by your mandate or by the court, can do it for you. Hemust act in your best interest and must take into account any wishes you may have expressed when you were well. This is where the “living will” comes in. It is not a real will but rather an informal document that you can write out yourself containing your instructions in the event you become ill and are unable to express your wishes. It guides the person making decisions for you so that those decisions are the same as what you would have made yourself were you able to do so. The mandate in the event of incapacity is made in anticipation of incapacity and names a representative (mandatary) or representatives to take care of you and/or administer your property should you become incapable of doing so yourself. It may also contain the same provisions regarding health care as are found in the “living will.”

The mandate in the event of incapacity will take effect while you are still living, but only if you no longer have capacity, that is, if you are unable to take care of yourself or if you do not have the capacity to make your own decisions with regard to your property. It can contain special provisions for your special needs or lifestyle. For example, it can provide for the care of a pet, for contributions to charity, for an allowance to or support of a spouse or other person, for the sale or renting of a property, for a contribution to the education of a family member, etc. Where there is no mandate, such expenditures would have to be approved by the public curator’s office and the court.

The mandate in the event of incapacity is a formal document that can be prepared by an attorney or notary. In some cases the document provides instructions for your personal care as well as instructions with regard to the administration of your property. In other cases two separate mandates may be made, one with regard to personal care, the other with regard to administration of property. You can name one or more persons to represent you and different people can be named to care for your person and administer your property. In order for the mandate to take effect there must be a court judgment. This is the mandate called the homologation of the mandate. You will be advised that someone has asked the court to homologate the mandate and you will have the opportunity to appear in front of the judge and argue against the demand. Before deciding whether or not you have capacity and before rendering its judgment the court will study a physician’s report and the report of a psycho-social worker, and will obtain the testimony of witnesses. In many cases a representative of the court will interview you as well even if you do not fight the request. It is important to understand that this document, unlike a will, can only take effect while you are living. Also it will only take effect if the court is convinced that you do not have capacity. Furthermore, should you ever regain your capacity, you can easily end the mandate.

Why do we encourage people of all ages to sign a mandate in the event of incapacity? It is not only the diseases of age that can diminish a person’s capacity to make their own decisions, but accidents and temporary illness as well. If you choose not to have a mandate in the event of incapacity and at some point are assessed as lacking in capacity you may be declared to be a person in need of protective supervision. In such a case an application must be made to the court to convene a meeting of at least five relatives and friends. At that meeting a tutorship council usually consisting of three persons is elected as well as a tutor, curator or administrator. This is amore complex procedure and deprives you of the right to name your own representative (mandatary). Moreover, should it be determined that you are in need of protective supervision and should nobody be willing to act on your behalf, the public curator will step in. We are often asked to differentiate between a mandate in the event of incapacity, an ordinary mandate and a power of attorney. As already discussed, the mandate in the event of incapacity only takes effect upon judgment of the court based on proof of incapacity.

An ordinary mandate is the agreement by which you empower someone to act for you even though you have the mental capacity to make your own decisions. In the Quebec civil code there is no mention of the term “power of attorney” as there is in other places. In effect, the contract of mandate is the document by which you grant a power of attorney to another person. The best known and most used mandate is the bank's power of attorney. Granting a third party the right to use your bank funds should not be a general practice and should only be done with someone you trust completely, and then only if necessary and after much thought.

You can name one or more persons to represent you and different people can be named to care for your person and administer your property.

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Marriage contracts a good idea for common law couples

March 2009

Say “marriage contract” or “common law contract” and people think, “how unromantic.” Not so many years ago couples about to marry regularly entered into marriage contracts. However, the law has evolved to provide greater protection to those who are married.

With the existence of family patrimony laws, which establish rules as to the evaluation and division of the family home(s), furniture, vehicles and registered funds between the couple upon death or divorce, marriage contracts have become less popular. But what happens when you want to live together as a couple and not marry, as more and more people are doing?

As mentioned in a previous article, if you’re not married and choose to live common law, there is no right to spousal support upon separation. Also there may be a question as to what happens to savings and property accumulated during the relationship. What happens to the condo you are living in which is in the other person’s name? How do you support yourself? How do you protect yourself?

As difficult as it may be to think about an eventual break up at such a romantic moment, it would be wise to enter into a common law contract as you begin a life together. So long as that contract is not in violation of any of our laws pertaining to contracts in general, the courts will enforce its terms should your ex-partner refuse to do so.

What should be provided for in the contract will vary with each individual situation and will depend on such factors as the age of the parties, their health status, their individual assets and savings, the number of dependent children they have, their income, their earning capacity, their accumulated debt load, and other obligations they may have.

In most cases it should include a list of what items belong to each party, a statement of how expenses will be shared and under what circumstances that contribution might change (e.g. birth of a child, loss of employment), who will own assets that might be accumulated during the relationship, who will be responsible for managing the various aspects of the household. It should also provide how, in the event of separation, the assets accumulated during the relationship will be divided, what, if any, alimentary support should be paid, who will remain in the family residence, how the contents of the home will be divided, whether the family home will be sold and how the proceeds will be divided, who will keep the car, who will pay the debts.

There is no reason such a contract cannot be modified during the time the parties are together should circumstances change.

One always hopes a relationship will last forever, but in the event that it does end, hopefully the common law contract can act as the catalyst that permits the parties to remain friends rather than adversaries sitting at opposite tables in a court room.

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Why can’t I see my grandkids?

Grandparents are sometimes refused access to their grandchildren when their relationship with the children’s parents becomes strained.

The law provides that every decision concerning a child must be taken in the child’s best interests, and protects children’s right to a personal relationship with their grandparents, maintaining that parents must not interfere with that right without establishing a “grave reason” to do so.

However, it also stipulates parents’ duty to protect their children and children’s right to that protection. Where the child’s right to protection comes into conflict with the right to the relationship, a judge must decide what constitutes enough of a “grave reason” to justify parental interference.

When a grandmother petitioned for access to her 11-year-old granddaughter and newborn grandson, the judge interviewed the granddaughter and found her sufficiently mature and intelligent to end the relationship if necessary. In order not to subject the child to a loyalty conflict, the judge fixed exact times of visitation and telephone contact. He also found the new baby too young for contact with the grandmother to be permitted. The factors in rendering this decision were the child’s wishes, age and maturity level, and past relationship with her grandmother.

In another case when a mother stopped the relationship of her 4-year-old son with his grandfather who walked around the house naked with his girlfriend, and occasionally used drugs and could become aggressive, the court decided it was not in the best interest of the child to stay in this milieu, even for a few hours. The decision was that the grandfather’s behaviour constituted a sufficiently grave reason to deprive him of physical contact with the child. The court did however permit limited and specific telephone contact and ordered the mother to refrain from interfering with those calls. This way the judge protected the child while preserving his right to a relationship with his grandfather.

Every case is different, every case is special – but every child has a right to know his or her grandparents.

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No laws exist for common law unions in Quebec

The need for companionship does not diminish with age and an increasing number of people are entering into a committed relationship for the second and third time. A frequent question is: should we marry or just live together?

Marriage is defined by law as “the lawful union of two persons to the exclusion of all others.” The common law relationship has been defined as co-habitation with an element of permanence. What are the legal differences between the two?

Entering into marriage is a formal procedure carried out by a legally authorized person and requires that the free consent of both parties be declared openly in the presence of at least two witnesses. In the case of a common law relationship, two people decide to live together. They set up house and make their own financial arrangements. They may or may not enter into a written agreement. They consider themselves married but the law of Quebec does not. In all other Canadian provinces two people can declare themselves to be married common law and the union will have the same effect as a regular marriage.

In Quebec, a common law marriage does not really exist. Although some social legislation does include common law couples, no laws exist setting out the rights and obligations of the parties one towards the other. This means that when the common law relationship breaks up, there is no obligation for one to provide support to the other, regardless of the difference in their respective incomes and regardless of the number of years they have been living together.

Neither is the family residence protected as it is in the case of married couples. This means that if the family home belongs exclusively to one of the parties, the other can be forced to leave. This may not seem fair but the position has been justified by the courts on the grounds that common law relationships are a threat to the institution of marriage, that unmarried couples do not make the same commitment as those who marry and therefore the rights and duties created by marriage should not follow. The theory is that where the choice of two people is to live common law, it is because they do not want to incur the obligations that result from marriage. Consequently, to presume that common law couples want to be bound by the same obligations as married couples would be contrary to that choice.

The decision to marry includes the acceptance of various legal consequences of the formalized marriage, including the obligation of mutual support between the spouses. Where individuals choose not to marry, it would undermine the choice they have made if the state were to impose upon them the very same burdens and benefits which it imposes upon married persons.

Statistics show that, In Quebec, about 30% of relationships are common law. Interestingly, it was the Council on the Status of Women back in 1991 that lobbied against granting legal recognition to common law couples on the grounds that it went against the autonomy, equality, and freedom of choice of women.

The time will come when the law will catch up with reality. Meanwhile common law couples be well advised to enter into a co-habitation contract as they begin life together.

Joyce Blond Frank is a Montreal attorney specializing in family and elder law.

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Protection of the elderly against exploitation

There are times when seniors are taken advantage of even by members of their own family, by friends, as well as by strangers pretending to be friends. In consequence, the law has made a special effort to protect them. Families, therefore, have a moral duty to protect their elderly members, and a legal one.

This protection is provided by legislation in the form of the Quebec Charter of Human Rights and Freedoms which allows an elderly person who has suffered abuse or exploitation to complain to the Human Rights Commission and sue for damages.

Exploitation legally includes all kinds of abuse of an elderly person by someone who is stronger or more dominant, if this dominant person makes a profit or receives a benefit from the abuse. For example, damages have been awarded to the abused where a physician borrowed money from a 79 year old patient; where the owner of a residence for the elderly borrowed money from a 90 year old resident who had no memory and was physically and psychologically dependent; and where a salesman deliberately sold defective wheelchairs and other orthopedic aids to those considered vulnerable.

The right to protection and security provided by law to the elderly has been held to override the rights to which others may be entitled. This is what happened in the case of a couple, 87 and 95 years old, who owned a duplex, lived in one section and rented the other. They required a certain amount of care. Neither had any family in Montreal and so they had to hire and rely on outside people care for them. They wanted to house these helpers in that section of the duplex which was rented, but the tenant objected to giving up occupancy of the premises.

Under Quebec law residential property can only be repossessed by the landlord for use by the owner himself, his children, or other family members whom he supports. The court decided that the tenant's premises were needed to replace the family who, were they present, would be obliged to ensure that the couple was properly cared for. Because the premises were required for their protection and security, the provisions of the Charter superseded the provisions of the Civil Code and the request to retake possession of the premises was granted.

In yet another case, a 47-year-old waitress worked at the residence in which an 81-year-old with Alzheimer’s lived. Their relationship flourished for two-and-a half years during which they spent his monthly income. He bought her expensive jewelry and a car, signed a mortgage for a house in which he never lived, and saw his assets diminish by about $110,000.

Two of the three judges who heard the case in appeal held that the Charter protects the elderly against all forms of exploitation, physical, psychological, social and moral, regardless of whether or not the person consents to the abusive acts. They found that, during the relationship, the defendant's faculties were diminished due to Alzheimer's and ordered the waitress to pay damages in excess of $66,000.

Consequently, where there is a significant imbalance between the vulnerable person and the other person resulting in disastrous consequences to the vulnerable party and benefit to the other, damages will be awarded to the victim.

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