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Practical Guide to Elder Abuse and Neglect Law in Canada

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Prince Edward Island

This section outlines:

  1. A snapshot of the law in Prince Edward Island
  2. Key laws and regulations
  3. The Adult Protection Act
  4. Reporting abuse by a regulated health care professional
  5. Exceptions to confidentiality and privacy rules
  6. Criminal prosecution policies
  7. Orders under the Victims of Family Violence Act
  8. Substitute decision-makers in PEI and how to challenge their authority
  9. Employment leaves
  10. Family violence policies for social assistance
  11. Key government and community contacts.

1. Snapshot

Key features of elder abuse and neglect law in Prince Edward Island (PEI)

The Adult Protection Act requires people to report an adult in need of assistance or protection, where they owe a duty of care to the adult due to their professional employment or occupation. Other members of the public may also report abuse. Reports should be made to local offices of the Adult Protection Program.

The legal definitions of needing assistance or protection include circumstances involving abuse or neglect where the adult is unable to care for or protect themselves due to infirmity, disability, or other incapacity. They also include situations where someone who is responsible for them refuses to consent to services, or interferes with the services.

Under the Victims of Family Violence Act, the court can grant an emergency protection order or victim assistance order if a person is experiencing family violence. Family includes all family relationships even where the people do not live together. Family violence includes acts, threats, and omissions, including:

  • Sexual abuse;
  • Physical abuse;
  • Emotional abuse;
  • Forced confinement; and
  • Neglect.

The Employment Standards Act allows an older employee to take domestic violence leave, intimate partner violence leave, or sexual violence leave. An employee can take up to ten days job-protected leave (3 days of which are paid leave).

2. Key Laws and Regulations

Adult Protection

Health Care

Family Violence

Personal Planning

Privacy

Employment Protections

3. The Adult Protection Act

PEI has specific adult protection legislation, the Adult Protection Act.[13] This Act provides the framework for responding to adult abuse and neglect. Key features of this legislation include:

  • Defining abuse, neglect, and being in need of assistance or protection;
  • Prioritizing the decision-making autonomy of capable adults;
  • Allowing anybody to report abuse and neglect of adults in need of assistance or protection;
  • Requiring people in certain occupational or professional circumstances to report;
  • Setting out investigation and response requirements; and
  • Outlining protective and emergency interventions for adults who are in need of protection.

3.1 Guiding principles

The Adult Protection Act sets out the five guiding principles for interpreting and administering the adult protection regime. These principles prioritize:

  • The right of capable adults to live at risk;
  • The importance of using the least restrictive intervention; and
  • The importance of tailoring a response to the individual needs and circumstances of the adult, guided by the adult’s input.
  • 3. Guiding principles
  • This Act is to be administered in accordance with the following guiding principles:
  • (a) an adult is entitled to live in the manner he or she wishes and to accept or decline assistance offered by the Minister, provided the adult has the capacity to make reasonable decisions respecting those matters and does not cause harm to others;
  • (b) an adult who is in need of assistance or protection should receive the most effective but least restrictive or intrusive assistance or protective intervention, as the case may be;
  • (c) in relation to the provision of assistance or protective intervention to an adult who is in need of assistance or protection, as the case may be, the paramount consideration shall be the best interests of that adult;
  • (d) an adult who is in need of assistance or protection should be involved to the fullest practicable extent in decisions relating to that adult;
  • (e) assistance or protective intervention provided to an adult who is in need of assistance or protection, as the case may be, should address the specific needs of the adult and be reviewed and revised as the adult’s needs or circumstances change.[14]

3.2 Definitions of abuse and neglect

The Adult Protection Act defines abuse and neglect in a broad manner. Abuse is defined to mean “offensive mistreatment” that causes or is likely to cause severe physical, psychological, or financial harm. It can cover physical, psychological, sexual, emotional, and financial abuse. The types of abuse are not further defined in the Act.

Neglect is defined to mean a lack of necessary care or attention which causes or is likely to cause severe physical, psychological, or financial harm.

Self-neglect is excluded from these definitions.

  • (a) “abuse” means offensive mistreatment, whether physical, sexual, mental, emotional, material or any combination thereof, that causes or is reasonably likely to cause the victim severe physical or psychological harm or significant material loss to his estate;
  • (k) “neglect” means a lack of or failure to provide necessary care, aid, guidance or attention which causes or is reasonably likely to cause the victim severe physical or psychological harm or significant material loss to his estate.[15]

The Adult Protection Act also defines what it means to need assistance or protection, as the purpose of the law is to assist and protect vulnerable adults. These definitions encompass older adults with reduced capacity who are being abused or neglected. Self-neglect is captured by these definitions.[16]

  • (h) “in need of assistance” means, in relation to an adult, requiring assistance to
    • (i) provide or arrange for adequate care for oneself or one’s estate, or
    • (ii) protect oneself against abuse or neglect, due to infirmity, disability or other incapacity, whether physical or mental;
  • (i) “in need of protection” means, in relation to an adult, requiring protective intervention to maintain the safety and well-being of the adult or preserve the adult’s estate, because
    • (i) due to mental incapacity, the adult is unable to make a reasonable decision respecting assistance offered by the Minister,
    • (ii) a person with supervisory responsibility for the adult refuses to consent to, or interferes with, the provision or arrangement of assistance for the adult by the Minister, or
    • (iii) due to infirmity, disability or other incapacity, whether physical or mental, the adult
      • (A) is unable to provide or arrange for adequate care for himself or herself or his or her estate, or
      • (B) is experiencing, and is unable to protect himself or herself against, abuse or neglect;
  • (o) “supervisory responsibility” means a duty, whether legal, contractual or otherwise established by mutual understanding, to provide or exercise some form of care, aid, management, guidance or other attention necessary to help a person having diminished capacities with routine requirements of daily living and affairs.[17]

3.3 Reporting abuse and neglect

In PEI, there is no public duty to report elder abuse or neglect. The Adult Protection Act states that if a person believes an adult is in need of assistance or protection, they can report this to the Minister of Health and Wellness.

  • 4. Opportunity to report
  • (1) Any person who has reasonable grounds for believing that an adult is in need of assistance or protection may report the circumstances to the Minister.[18]

There are certain professions which do have a duty to report an adult in need of assistance or protection to the Minister. Any person whose profession has a duty of care to vulnerable adults must make a report. These professions include:

  • Health care;
  • Social services;
  • Education;
  • Law enforcement; and
  • Counselling.
  • Duty to report
  • (2) Notwithstanding subsection (1), any person who, by virtue of his or her professional employment or occupation in health care, social services, education, law enforcement, counselling, residential services or any other field where the person has a duty of care to vulnerable adults, has reasonable grounds for believing that an adult is in need of assistance or protection shall report the circumstances to the Minister.[19]

A person who reports abuse or neglect or helps with the investigation is protected from having a civil action launched against them for this.[20]

3.4 Investigating reports of abuse and neglect

If the Minister receives a report of abuse or neglect, they have the power to investigate whether the adult needs assistance or protection.[21]

The Minister has been given powers to investigate, including the power to:

  • Speak with the adult;
  • Request the adult undergo a capacity assessment;
  • Interview people who may have relevant information;
  • Obtain health care information about the adult;
  • Obtain financial and business records of the adult;
  • Obtain information from law enforcement and other persons or agencies that have information relevant to the investigation;[22]
  • Apply to the court for an order to enter a premises; and
  • Apply to the court for an order requiring the adult undergo a capacity assessment.[23]

3.5 Responding to abuse or neglect

If the Minister has determined that the adult needs assistance or protection, they must develop a case plan for addressing the situation. This could include:

  • Arranging assistance;
  • Obtaining a protective intervention order;
  • Obtaining a substitute decision-maker; or
  • Providing emergency interventions.[24]

The adult, and any person with supervisory responsibility for the adult, must be involved in the development of a case plan to the greatest extent possible.[25]

Assistance

The Minister can provide assistance to the adult if:

  • Based on an investigation, the adult needs assistance;
  • The case plan provides for this; or
  • The adult or their guardian consents.

This assistance can include:

  • Counselling;
  • Speech and hearing therapy;
  • Personal care services;
  • Social support services;
  • Applications for guardianship;
  • Arranging other accommodations; or
  • Any other services that may support the adult’s safety and well-being.[26]

Protective Intervention Order

If the Minister finds the older adult needs protection, they can apply to court for a protective intervention order. A court will grant the order if it considers the intervention to be in the best interests of the adult.

A protective intervention order can allow for several interventions to occur, depending on the needs and best interests of the adult. Possible terms of the order include to:

  • Provide assistance for the adult;
  • Remove the adult from their current location;
  • Place the adult in the care of the Minister;
  • Order a person not to contact the older adult;
  • Order a person to leave and stay away from the adult’s residence;
  • Order a person to not be involved in the adult’s estate; or[27]
  • Move the adult to a hospital or other location to be given health care, if essential to protect the adult’s health.[28]

Guardianship

If the Minister believes the adult does not have decision-making capacity as to their personal welfare or estate, and needs assistance or protection, they can apply to the court to have a guardian or committee appointed.

If there is a considerable risk of serious and imminent harm to the adult or the adult’s estate, the Minister can apply to the court to be appointed a temporary guardian. Temporary guardianship can be in effect for up to 180 days and can be renewed once.[29]

Emergency Interventions

If the Minister believes there is a considerable risk of immediate, serious harm to an adult who may need protection, the Minister can:

  • Have the adult removed from their current location;
  • Remove the source of the harm; and/or
  • Limit communication between people.

Within 5 days of the adult being removed from danger, the Minister must apply to the court for a protective intervention order.[30]

4. Regulated Health Professionals and Reporting

Two laws regulate the practice of health professionals:

  • The Regulated Health Professions Act, which applies to other health professions which are designated as self-regulating under this Act, including nurses, pharmacists, and occupational therapists;[31] and
  • The Registered Health Professions Act, which applies to health professions which are too small to be self-regulated, but for which it would be in the public interest to regulate. A profession designated under this Act would not be self-regulating but would be regulated by the government.[32]

4.1  Remedies

Each college is responsible for regulating health professionals within their jurisdiction, including making sure members are fit for practice and are not committing any infractions. This process is limited to reviewing the regulated health professional’s actions. If a member has been found to be engaging in abuse, the college’s remedies are limited to restricting a regulated health professional’s practice. The college can remove a person’s practice credentials if they are danger to the public. However, a complaint usually will not result in any remedies for the person who has been abused. The specifics of what actions a college can take in regulating a health professional’s actions will depend on the specifics of the Acts governing the practice area.

4.2 The Regulated Health Professions Act

Any person can make a complaint to the registrar that a member has engaged in professional misconduct or incompetence.[33] A member of the college has a duty to report to the college if they believe that another member:

  • Has engaged in professional misconduct;
  • Is incompetent to practice; or
  • Has sexually abused a patient or client.

Upon receipt of a report, the registrar will decide whether they will start a complaint.[34]

The law sets out additional requirements when there is a report of sexual abuse. Before a member reports sexual abuse of another member, they must inform the patient or client of the obligation to report and encourage them to initiate their own complaint. The member must not identify the client or patient in this report unless the client or patient has consented to their identity being disclosed.[35]

Upon receipt of a complaint, the registrar will investigate, and if the complaint has merit, the registrar will refer the matter to the investigation committee.[36] The investigation committee must investigate the complaint. After the investigation, the committee must either:

  • Dismiss the complaint;
  • Refer the matter to mediation;
  • Refer the matter to the hearing committee; or
  • Refer the matter to an investigator.[37]

The hearing committee determines whether the health professional has engaged in professional misconduct or incompetence.[38]

If the hearing committee determines that the member engaged in misconduct or incompetence, the hearing committee can take certain actions, including:

  • Suspending or revoking a person’s registration;
  • Placing terms and conditions on a member’s practice;
  • Issuing a reprimand;
  • Ordering additional training;
  • Ordering a member participate in counselling or rehabilitation treatment; or
  • Issuing a fine.[39]

If a member’s conduct may pose a risk of serious and imminent harm to another person, the college can make an interim order to impose conditions on the member’s practice or suspend a member’s registration.[40]

4.3 The Registered Health Professions Act

At the time of publication, there are no health professions designated under the regulations of the Registered Health Professions Act. The provisions in this Act are substantially the same as those in the Regulated Health Professions Act, and so will not be detailed here. If you are a member of a profession which becomes designated under the Registered Health Professions Act, consult the Act for details regarding your reporting duties.

4.4 Other reporting duties

Regulated health professionals may also have some duties to report abuse or misconduct arising from their professional codes of conduct. If you are a regulated health professional, examine your professional codes of conduct or practice standards to see if you have any responsibilities under these rules, or contact your college for advice.

5. Confidentiality, Privacy, and Privilege

Confidentiality ensures vital information is kept private for professions which require a client to disclose private information, such as counsellors, doctors, and nurses. A lawyer must respect solicitor-client privilege. Requirements of confidentiality and privilege can be found:

  • In legislation;
  • In common law; and
  • In professional codes of ethics, codes of conduct, or professional standards.

Generally, professionals, staff, and volunteers must get consent from the older adult before disclosing personal or health information. However, exceptions to confidentiality and privilege have been created by various laws.

5.1 Anonymity of a person who reports abuse

The Adult Protection Act contains a provision relevant to confidentiality. The identity of a person who reports abuse or neglect must be kept confidential.

  • Confidentiality
  • (3) No person shall disclose or be compelled to disclose the identity of a person who makes a report under subsection (1) or (2).[41]

5.2 Confidentiality of personal and health information

Exceptions under adult protection law

The Adult Protection Act gives the Minister powers to obtain information about the adult as part of an investigation into potential abuse or neglect of that adult, including health care and financial information. The Minister has a right to this information, and people who have custody of this information must disclose it. This power overrides any confidentiality laws or requirements, with the exception of solicitor-client privilege.[42]

  • Right to information
  • (4) For the purpose of subsection (3), the Minister’s right to information overrides
    • (a) a claim of confidentiality or privilege, except solicitor-client privilege; and
    • (b) a restriction in an enactment or the common law about the disclosure or confidentiality of information.
  • Duty to provide information
  • (5) Any person who, or agency that, has custody or control of information that the Minister is entitled to under subsection (3) shall provide that information to the Minister on request.[43]

Exceptions under privacy law

In PEI, there are two pieces of legislation that outline privacy rights:

  • Freedom of Information and Protection of Privacy Act and Health Information Act — applies to public bodies, such as government departments and agencies.[44]
  • Health Information Act — applies to personal health information that is used or collected by a public body, health care facility, or health care provider.[45]

The federal Personal Information Protection and Electronic Documents Act also applies in PEI. See the federal laws section for confidentiality exceptions under this Act, which applies to private organizations conducting commercial activities and to federally regulated organizations, such as banks.

These laws govern the manner in which personal information may be collected, used, and disclosed. Under these laws, personal information must be kept confidential, and generally disclosure is permitted only if a person consents to the disclosure or if the disclosure is for the purpose for which the information was collected. Only in prescribed circumstances can information be disclosed without consent.[46]

Under the Freedom of Information and Protection of Privacy Act, public bodies can disclose personal information without consent for prescribed reasons, including:

  • If the disclosure will avert or minimize an imminent danger to the health or safety of any person;[47]
  • To assist with a police investigation;[48]
  • As required by another law;[49] or
  • To the Public Trustee to manage a person’s estate.[50]

Under the Health Information Act, personal health information can be disclosed without consent for prescribed reasons, including:

  • To prevent or reduce a risk of serious harm to the health or safety of the individual to whom it relates or another individual;[51]
  • For the delivery, planning, and monitoring of health care;[52]
  • For investigating and disciplining a regulated health professional;[53]
  • To assist with an investigation;[54] or
  • As required by another law.[55]

Exceptions that apply to solicitor-client privilege

Confidentiality and legal privilege are two similar, but legally distinct concepts. Both are based on the principle that a lawyer owes a duty of loyalty to the client.

Solicitor-client privilege is a legal principle that applies to all communications between a client and a lawyer where the communication was for the purposes of obtaining legal advice and was intended to be confidential.[56] It operates to protect such information from having to be disclosed in legal proceedings.

However, solicitor-client privilege will not apply:

  • Where privilege has been waived by the client;
  • Where there is a clear, serious, and imminent threat to public safety;[57]
  • Where the innocence of an accused is at stake;[58]
  • Where limited by law.

Other types of privilege include litigation privilege, which protects communications created for the dominant purpose of preparing for litigation.

A lawyer’s duty of confidentiality is an ethical duty. Unlike privilege, this duty covers any communications made during the professional relationship – there is no requirement that the communications be made for the purposes of obtaining legal advice.

The Law Society of Prince Edward Island has set out the duty of confidentiality and applicable exceptions in its Code of Professional Conduct.[59]

  • Confidential Information
  • 3.3-1 A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless:
    • (a) expressly or impliedly authorized by the client;
    • (b) required by law or a tribunal to do so;
    • (c) required to deliver the information to the Law Society; or
    • (d) otherwise permitted by this rule.[60]

The Code also permits disclosure of limited confidential information when there is imminent risk of death or serious bodily harm, and disclosure is necessary to prevent this.

  • Future Harm / Public Safety Exception
  • 3.3-3 A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.[61]

6. Criminal Prosecution Policy

While criminal law is primarily under the federal jurisdiction, PEI’s Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Prince Edward Island[62] provides guidance to prosecutors. There are no policies directly covering elder abuse, but a few chapters touch on aspects of elder abuse.

The Decision to Prosecute chapter notes that prosecutions should be in the public interest. Factors to determine if prosecution would be in the public interest include “the age, intelligence, physical or mental health, or infirmity of the accused.”[63]

The Direct Indictments chapter discusses when a direct indictment would be in the public interest, and lists factors which would indicate direct indictment. Factors relevant to elder abuse include:

  • Where the age, health, or other circumstances relating to witnesses requires their evidence to be presented before the trial court as soon as possible;[64] and
  • Where there is a reasonable basis to believe that the lives, safety, or security of witnesses or their families may be in peril.[65]

The Victims of Crime chapter describes policies for supporting victims during the criminal justice process. These include:

  • Victims must be given the opportunity to meaningfully participate in the process;
  • Victims should be informed about the proceedings as they are happening;
  • For violent crimes, Crown attorneys should be sensitive to the victim’s sense of vulnerability in such cases and consider appropriate measures to enhance security and comfort;
  • Crown should eliminate barriers to participation for victims with physical disabilities or whose first language is not English;
  • Crown should consider whether safety measures need to be taken to protect the victim, such as prohibition orders against offenders;
  • Victims should be informed about available victim services; and
  • If the victim is testifying, the Crown should consider the use of testimonial aids or other methods of testifying that would make a victim more comfortable.[66]

The Spousal Violence chapter is not directly aimed at elder abuse but can apply when the person abusing the older adult is their spouse. The policy notes that in many small communities in PEI, the options available to victims may be limited because:

  • They might not have access to emergency shelters or other support;
  • They may face pressure in the community not to report the crime; and
  • It may be difficult to prohibit contact in a small community.

The policy deals with matters such as:

  • Judicial interim release, including how the Crown should handle judicial interim release hearings;
  • The information to be contained in the court brief;
  • Review of detention or conditions of release, in particular whether the complainant should be able to resume communication with the accused;
  • Prosecution of a breach of bail terms;
  • Preparation of witnesses and the provision of support, encouragement, and understanding;
  • The need for early support for victims to reduce the likelihood they will be reluctant to testify; and
  • Sentencing considerations.[67]

7. Orders under the Victims of Family Violence Act

The Victims of Family Violence Act[68] outlines how a person who is experiencing family violence can obtain an emergency protection order or victim assistance order.

7.1. Definitions

People experiencing family violence can obtain legal protection in the form of an emergency protection order or victim assistance order. The Victims of Family Violence Act defines family violence as violence against someone who is or was in a family relationship with the perpetrator. “Violence” is in turn defined to cover:

  • Assault;
  • Acts or threats that cause a reasonable fear of injury or property damage;
  • Emotional abuse;
  • Forced confinement;
  • Sexual abuse; and
  • Neglect.
  • 2. Family violence
  • (1) “Family violence” in relation to a person, is violence against that person by any other person with whom that person is, or has been, in a family relationship.
  • Violence
  • (2) In subsection (1), violence includes
    • (a) any assault of the victim;
    • (b) any reckless act or omission that causes injury to the victim or damage to property;
    • (c) any act or threat that causes a reasonable fear of injury to the victim or damage to property;
    • (d) forced confinement of the victim;
    • (e) actions or threats of sexual abuse, physical abuse or emotional abuse of the victim; and
    • (f) depriving a victim of food, clothing, medical attention, shelter, transportation or other necessities of life.[69]

The law also defines who a victim is and who is encompassed within a family relationship. “Family relationship” is defined to mean a relationship between members of the same family, or two people who were or are in a marriage, spousal, or sexual relationship while cohabitating.

  • (q) “victim” means
    • (i) a person who has resided with or who is residing with the respondent in a family relationship, -or
    • (ii) a person who, with the respondent, is a parent of one or more children, regardless of marital status or whether the victim and respondent have lived together at any time,
  • who has been subjected to family violence by the respondent;
  • (d) “family relationship” means a relationship between
    • (i) two persons who are or have been married to each other or have cohabited in a spousal or sexual relationship; or
    • (ii) members of the same family;[70]

7.2 Emergency Protection Orders

The court can grant an emergency protection order when a person has experienced family violence, and the circumstances are serious or urgent. In deciding whether to grant the order, the justice of the peace must consider:

  • The nature of the family violence;
  • The history of family violence towards the victim;
  • Whether there is immediate danger to persons or property; and
  • The best interests of the victim and any person in the victim’s care.[71]
  • 4. Emergency protection order
  • (1) A justice of the peace, on the application of any person pursuant to subsection (6)in the prescribed form and without notice to any other person, may make an emergency protection order if he or she determines
    • (a) family violence has occurred; and
    • (b) the seriousness or urgency of the circumstances merits the making of an order.
  • Factors considered
  • (2) In determining whether to make an order the justice of the peace shall consider the following factors:
    • (a) the nature of the family violence;
    • (b) the history of family violence by the respondent towards the victim and whether it is more probable than not that the respondent will continue the family violence;
    • (c) the existence of immediate danger to the victim, other persons or property; and
    • (d) the best interests of the victim or any child or other person in the care of the victim.[72]

The following people can apply for an emergency protection order:

  • The victim;
  • A police officer, with the consent of the victim;
  • A victim service worker, with the consent of the victim;
  • A parent or guardian, if the victim does not have capacity to give consent; and
  • Any other person with leave of the court, if the victim does not have capacity to give consent.[73]

Possible terms of the emergency protection order are:

  • Granting the victim or other family members exclusive occupation of the residence for a defined period;
  • Removal of the abuser from the residence by a police officer;
  • Police accompaniment to collect belongings;
  • No direct or indirect communication with the adult or another specified person;
  • Staying away from specific locations;
  • Temporary care and custody of a child to the victim;
  • Temporary possession of personal property, including a car, financial records, and identification;
  • Order restraining the abuser from dealing with property or terminating the utilities servicing the residence;
  • Orders restraining the abuser from committing further acts of family violence;
  • Prohibitions on publication of the person’s name and address;
  • Requiring the abuser make rent or mortgage payments; or
  • Any other terms the court considers necessary.[74]

The order can be in effect for up to 90 days.[75] All emergency protection orders must be reviewed by a judge, who has the power to order a rehearing or to confirm or vary an order.[76]

7.3 Victim Assistance Orders

A victim can apply to the court for a victim assistance order. The court can grant a victim assistance order if family violence has occurred. The order can have any of the terms applicable to an emergency protection order, discussed above, and can also provide for access to children. The court can include any other conditions that it considers appropriate.[77]

7.4 Confidentiality

A victim of family violence can request that their address remain confidential. The victim can request a publication ban on the hearing and any orders that are issued, which the court will grant if publication would be against their best interests or would lead to adverse effects to the victim or their child. The court can make the hearings private if having a public hearing could lead to harm or adverse effects to the victim or their child.[78]

8. Financial Abuse by Substitute Decision-Makers

This section outlines the protections and remedies available when an older adult is experiencing financial abuse by a substitute decision-maker. These protections and remedies are contained in adult protection legislation, substitute decision-maker legislation, and health care legislation.

8.1 Substitute decision-makers in PEI

In PEI, a substitute decision-maker could be:

  • An attorney under a power of attorney (POA), chosen by the older adult;
  • A committee appointed by the court under the Public Trustee Act;[79]
  • The Public Trustee as committee through a statutory process; or
  • A guardian appointed by the court under the Mental Health Act.[80]

8.2 Attorney under a POA

An adult can appoint a person to be their attorney under a POA. A POA can continue to be valid after the adult loses capacity, as long as there is a statement to that effect in the POA. An attorney can make any decisions that an adult could make, including financial and legal decisions.[81]

A power of attorney can end in several ways:

  • If the power of attorney does not state that it continues to have effect after the adult becomes legally incapable, and the adult becomes legally incapable;
  • The adult revokes the power of attorney when they still have capacity; or
  • If terminated in accordance with the conditions or restrictions set out in the power of attorney.[82]

If the adult becomes legally incapable and the power of attorney is still in effect, certain persons can apply to the court to have the attorney account for any transactions they have made during the adult’s incapacity. An application can be made by:

  • A person with an interest in the estate;
  • The Public Trustee; or
  • Anyone else the court allows.[83]

If the adult becomes legally incapable and the power of attorney is still in effect, a person can apply to the court to have a different attorney appointed. An application can be brought by:

  • A person with interest in the estate;
  • The Public Trustee;
  • The current attorney; or
  • Any other person the court allows.[84]

8.3 Court appointed committee under the Public Trustee Act

If a person believes that an older adult does not have the decision-making capacity to manage their financial affairs, they can make an application to the court. The court can order the person to undergo a capacity assessment by a physician. If the court is satisfied the older adult is not capable of managing their affairs and that having a committee would be in the adult’s best interest, the court can appoint a committee.[85]

A committee takes custody of all of the adult’s property and finances. Generally, a committee has the power to:

  • Make payments for the maintenance of the adult;
  • Invest and deposit the adult’s money;
  • Lease property for a term not more than three years; and
  • Perform any contracts entered into by the adult before the adult became incapable.

In addition, the court may order the committee take any action as is necessary to:

  • Preserve the adult’s estate;
  • Bring legal proceedings on behalf of the adult; or
  • Transfer or dispose of property.[86]

A committee is required to file an inventory of the adult’s estate within three months of becoming committee and annually provide an accounting of actions taken and the adult’s financial affairs.[87]

The committee can be replaced by a substitute committee if the committee resigns or does not provide accounts for the adult’s property. To substitute a committee, a person must bring an application to court.[88]

A committeeship ends when the adult dies or the court determines that the adult has regained decision-making capacity. Either the adult or the committee may bring an application to the court terminating the committee on the basis that the adult has regained capacity. If the committeeship is terminated, the property will be returned to the older adult.[89]

Committeeships must be registered in the Committee Register. This includes:

  • New committeeship orders;
  • Changes to a committee order; and
  • Termination of a committee order.[90]

8.4 Public Trustee as a statutory committee

A physician may issue a certificate of incompetence if the physician has examined the adult and determined that the adult is incapable of handling their financial affairs, and that it would benefit the adult to appoint a committee. If a certificate of incompetence has been issued and the older adult does not have an existing court-appointed committee or attorney under a POA, the Public Trustee becomes committee of the estate. The Public Trustee is committee as soon as they receive the certificate or have been notified that the certificate has been issued.[91]

The Public Trustee ceases to be committee of the estate when the certificate of incompetence is cancelled by the adult’s physician.[92]

As committee of the estate, the Public Trustee can make any decision about the older adult’s estate that the older adult could make.[93] The Public Trustee must account for any actions they have taken as committee.[94]

8.5 Court appointed guardian under the Mental Health Act

Under the Mental Health Act, any interested person can apply to the court to have a guardian appointed. For the court to appoint a guardian:

  • The adult must need a guardian;
  • The adult must not have decision-making capacity to manage their personal affairs; and
  • It must be in the adult’s best interests to have a guardian appointed.

An application for guardianship must be accompanied by two certificates of incapacity, each issued by a physician.[95]

Subject to any directions or limitations that might be set out in the guardianship order, a guardian can make any personal decisions the adult can make, including regarding where to live, health care, education, social contacts, and legal matters.[96]

A person can apply to the court to have the guardianship reviewed. If a guardian dies, resigns, or fails to comply with any directions that apply to the guardianship, the court can replace the guardian.[97]

8.6 The Public Trustee’s role in financial abuse

One of the Public Trustee’s functions is to protect the estates of an adult who is not capable of making decisions. The Adult Protection Act states the Minister can inform the Public Trustee if an older adult is at considerable risk of immediate, serious harm to their estate.[98] As discussed above, the Public Trustee can become a committee upon receiving certificates of incompetence. A Public Trustee may also apply to the court to have a committee appointed. The Public Trustee, as a last resort, can be appointed as an attorney under a POA, a committee of the estate, or as guardian.[99]

9. Employment Leaves for People Experiencing Violence

Adults who are experiencing abuse may have access to an employment leave. The domestic violence leave, intimate partner violence leave, or sexual violence leave allows an employee to take time off to obtain services they need, including:

  • Medical care;
  • Victim services;
  • Counselling;
  • Housing;
  • Legal advice; or
  • Criminal remedies.[100]

The definition of domestic violence includes any person that is related to the employee by blood, marriage, or adoption regardless of whether they live in the same residence. The definition of sexual violence does not limit it to a particular person. The definition of violence includes:

  • Physical abuse;
  • Psychological abuse;
  • Sexual abuse;
  • Forced confinement;
  • Neglect; and
  • Damage to property.[101]

An employee can have up to 3 days of paid leave and a further 7 days of unpaid leave each calendar year. Employees must notify the employer that they will be taking this leave. The leave days can be taken consecutively or throughout the year.[102] This leave protects an employee from being fired or suspended.[103]

An employer can ask for written evidence of why the employee needs this leave. This evidence can include information from a:

  • Social worker;
  • Psychologist;
  • Doctor;
  • Nurse;
  • Police officer;
  •  Victim services worker; or
  • Cultural service provider.[104]

The employer must keep any information regarding the circumstances of the leave confidential, and only disclose it to prescribed persons. This includes disclosure requirements under the Adult Protection Act and disclosure to other employees who need the information to take over the employee’s duties.[105]

10. Family Violence Policies for Social Assistance

For people who are fleeing family violence and need to apply for social assistance, PEI’s social assistance policies set out procedures to protect the applicant. If an applicant discloses that they are a victim of family violence, the program staff must determine on a priority basis if the applicant is approved for emergency assistance. A case worker can authorize funding for transportation if the applicant needs to leave their residence. Staff members must consider the safety of the applicant when phoning or meeting with the applicant. The applicant must be informed about resources, such as family housing. The staff must encourage the applicant to have a support person with them. Staff may also arrange translation services if these are needed.[106]

11. Key Contacts

Reporting Elder Abuse

Health PEI Adult Protection Program

Contact Adult Protection through a local Home Care office if you believe a vulnerable adult is being abused or neglected.

Souris

Souris Hospital
17 Knights Avenue
PO Box 640
Souris, PE   C0A 2B0

Montague

6 Harmony Lane
PO Box 490
Montague, PE   C0A 1R0

Charlottetown

165 John Yeo Drive
Charlottetown, PE   C1E 3J3

Summerside

Wedgewood Manor
310 Brophy Avenue
Summerside, PE   C1N 5N4

O’Leary

Community Hospital
14 MacKinnon Drive
PO Box 160
O’Leary, PE   C0B 1V0

Government Agencies

Seniors Secretariat

The PEI Seniors’ Secretariat provides policy and program advice to government and other organizations to improve the quality of life for seniors. It also develops and supports public education efforts about issues of importance to seniors and gathers information and research on related issues.

Seniors Safe @ Home Program

The Seniors Safe @ Home Program provides financial assistance to older adults who need to make changes to their home in order to improve its accessibility.

Further details about the program can be found at: www.princeedwardisland.ca/en/information/social-development-and-housing/seniors-safe-home-program

161 St. Peters Road, P.O. Box 2000
Charlottetown, PE C1A 7N8

Island Helpline

The Island Helpline is a confidential, supportive telephone service for anyone who is in a crisis, feeling depressed, or thinking about suicide. It is available 24 hours a day, 7 days a week. Staff provide emotional support, problem solving, and crisis intervention services.

Victim Services

Victim Services assists victims of crime throughout their involvement in the criminal justice system. Contact Victim Services in your area:

Victim Services: Queens and Kings County

1 Harbourside Access Road
PO Box 2000
Charlottetown, PE C1A 7N8

Victim Services: Prince County

263 Heather Moyse Drive
Suite 19, 2nd Floor
Summerside, PE   C1N 5P1

Community Organizations

PEI Senior Citizens Federation

The P.E.I. Senior Citizens’ Federation is a nonprofit charitable organization consisting of over 50 seniors’ clubs, groups, and organizations. Its aim is to act as a voice for Island seniors and advocate for a better quality of life on their behalf. The federation administers a range of programs for older adults.

40 Enman Crescent, Suite 214
Charlottetown, PE  C1E 1E6

Community Legal Information Association of Prince Edward Island

Community Legal Information is a registered charity that helps residents of Prince Edward Island understand the law and navigate the justice system in the province. It provides free legal information on various topics.

53 Grafton Street,. Suite 202
Charlottetown, PE  C1A 1K8

Endnotes

[1] RSPEI 1988, c A-5.

[2] RSPEI 1988, c R-10.1.

[3] RSPEI 1988, c R-8.01.

[4] RSPEI 1988, c V-3.2.

[5] PEI Reg EC558/96.

[6] RSPEI 1988, c P-16.

[7] RSPEI 1988, c P-32.2.

[8] RSPEI 1988, c M-6.1.

[9] RSPEI 1988, c F-15.01.

[10] RSPEI 1988, c H-1.41.

[11] RSPEI 1988, c E-6.2.

[12] PEI Reg EC188/19.

[13] APA, supra note 1.

[14] Ibid, s 3.

[15] Ibid, s 1.

[16] Ibid, ss 1-2.

[17] Ibid, s 1.

[18] Ibid, s 4(1).

[19] Ibid, s 4(2).

[20] Ibid, s 4(4).

[21] Ibid, s 5.

[22] Ibid, s 5(3).

[23] Ibid, s 6.

[24] Ibid, ss 8, 9, 11, 15, 23.

[25] Ibid, s 8.

[26] Ibid, ss 9-10.

[27] Ibid, s 12.

[28] Ibid, s 13.

[29] Ibid, s 15.

[30] Ibid, s 23.

[31] RHPA, supra note 2, ss 1-4.

[32] RegHPA, supra note 3, ss 1-3.

[33] RHPA, supra note 2, s 36.

[34] Ibid, s 62.

[35] Ibid, s 62.

[36] Ibid, s 40.

[37] Ibid, s 43.

[38] Ibid, ss 57, 58.

[39] Ibid, s 58.

[40] Ibid, s 53.

[41] APA, supra note 1, s 4(3).

[42] Ibid, s 5.

[43] Ibid, s 5(4), (5).

[44] FOIPPA, supra note 9, s 4.

[45] HIA, supra note 10, ss 1, 3.

[46] FOIPPA, supra note 9, s 37; HIA, ibid, s 23.

[47] FOIPPA, ibid, s 37(1)(cc).

[48] Ibid, s 37(1)(p).

[49] Ibid, s 37(1)(d).

[50] Ibid, s 38(1)(w.1).

[51] HIA, supra note 10, s 24(1)(a).

[52] Ibid, s 23(13).

[53] Ibid, s 24(3).

[54] Ibid, s 24(6).

[55] Ibid, s 24(9).

[56] Descôteaux v Mierzwinski, [1982] 1 SCR 860 at 870–876, 141 DLR (3d) 590 [Descôteaux cited to SCR].

[57] Smith v Jones, [1999] 1 SCR 455 at para 35, 169 DLR (4th) 385, [Smith cited to SCR]

[58] R. v. McClure, [2001] S.C.R. 445, [McClure cited to SCR]

[59] The Law Society of Prince Edward Island, Code of Professional Conduct, Charlottetown: The Law Society of Prince Edward Island, 2014 (amended 25 June 2016).

[60] Ibid, ch 3 (3.3-1).

[61] Ibid, ch 3 (3.3-3).

[62] Prince Edward Island, Justice and Public Safety, Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Prince Edward Island (Charlottetown: Crown Attorneys’ Office, November 2009), online: <www.princeedwardisland.ca/sites/default/files/publications/guide_book_of_policies_and_procedures_for_the_conduct_of_criminal_prosecutions.pdf>.

[63] Ibid, at 5-6.

[64] Ibid, at 18-2.

[65] Ibid, at 18-2.

[66] Ibid, at 15-2 -15-6.

[67] Ibid, at 14-2 – 14-6, 14-9 – 14-10.

[68] VFVA, supra note 4.

[69] Ibid, s 2.

[70] Ibid, s 1.

[71] Ibid, s 4.

[72] Ibid, s 4(1), (2).

[73] Ibid, s 4(6); VFVA Regulation, supra note 5, s 3.

[74] VFVA, ibid, s 4(3).

[75] Ibid, s 4.

[76] Ibid, s 6.

[77] Ibid, s 7.

[78] Ibid, s 11.

[79] PTA, supra note 7.

[80] MHA, supra note 9.

[81] POAA, supra note 6, ss 1-5.

[82] Ibid, ss 3, 5, 7.

[83] Ibid, s 9.

[84] Ibid, s 10.

[85] PTA, supra note 7, ss 23, 25.

[86] Ibid, s 26.

[87] Ibid, ss 27, 28.

[88] Ibid, s 29.

[89] Ibid, s 32.

[90] Ibid, s 33.

[91] Ibid, s 14.

[92] Ibid, s 14.

[93] Ibid, s 16.

[94] Ibid, s 20.

[95] MHA, supra note 9, s 40.

[96] Ibid, s 40.

[97] Ibid, s 40.

[98] APA, supra note 1, s 24.

[99] PTA, ss 14-20, 52; Prince Edward Island, “Public Trustee, Public and Official Guardian” (10 April 2019), online: <www.princeedwardisland.ca/en/information/justice-and-public-safety/public-trustee-public-and-official-guardian>.

[100] ESA, supra note 11, s 22.4; Leave Regulations, supra note 12, s 2.

[101] Leave Regulations, ibid, s 1.

[102] ESA, supra note 11, s 22.4.

[103] Ibid, s 23.3.

[104] Leave Regulations, supra note 12, s 6.

[105] Ibid, ss 4-5.

[106] Prince Edward Island, Social Development and Housing Ministry, Social Assistance Policies, section 2-1-1 (6 March 2015), online: <www.princeedwardisland.ca/en/information/social-development-and-housing/social-assistance-policies>.

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