860 THE ADVOCATE VOL. 75 PART 6 NOVEMBER 2017 have expressed concerns about navigating the various provincial or territorial laws governing notification of third parties, privacy requirements in the financial sector, substitute decision making or supported decision making, and reporting of elder abuse and neglect. Older adults and persons with diminished capacity, and their advocates, have also been calling for a practical and appropriate way for the investment industry to play a positive role in recognizing and responding to these issues, without being overly paternalistic or putting the investor in a more dangerous situation by alerting the abuser. There was an obvious need for the investment community, the legal profession and elder advocates to come together to address the gaps in the system by way of some standard practices and protocols. In 2016 the Canadian Centre for Elder Law (“CCEL”), in collaboration with the Foundation for the Advancement of Investor Rights (“FAIR Canada”), undertook a one-year project to consider these issues, funded by the Law Foundation of Ontario’s National Access to Justice Fund. The CCEL and FAIR Canada are releasing their final report on this project, “Vulnerable Investor Protective Action and Legal Safe Harbour”. This report includes recommendations on how to address gaps in the system and create standard protocols. After significant consultation with older adults, persons with capacity challenges and their supporters, securities commissions and the investment industry, the final report makes a number of recommendations, most notably the following: 1. Create a Conduct Protocol on Elder Abuse, Undue Influence and Diminished Mental Capacity Canadian securities regulators should create an easy-to-follow written guide for investment firms to follow in responding to suspected elder abuse, undue influence or mental capacity issues. 2. Require Canadian Investment Firms to Have Staff Education on Elder Abuse, Undue Influence and Diminished Mental Capacity In order to be able to identify problems and respond appropriately, investment firm staff must be provided with adequate training on issues relating to elder abuse, including how power, control and undue influence affect a client and how to identify mental capacity issues that a client may be experiencing. Staff should also be trained to ensure that they are not bringing ageist ideas to their practice, and to promote client autonomy and choice wherever possible.
Nov Advocate 2017
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