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Practical Guide to Elder Abuse and Neglect Law in Canada

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Saskatchewan

This section outlines:

  1. A snapshot of the law in Saskatchewan
  2. Key laws and regulations
  3. Abuse response in care homes
  4. Reporting abuse by a health care professional
  5. Exceptions to confidentiality and privacy rules
  6. Criminal prosecution policies
  7. Protections from interpersonal violence
  8. Financial abuse by substitute decision-makers and how to challenge their authority
  9. Employment protections
  10. Key government and community contacts

1. Snapshot

Key features of elder abuse and neglect law in Saskatchewan

The Personal Care Homes Act requires care homes to report incidents of neglect and unlawful conduct toward residents which cause them harm to:

  • The resident’s supporter, or a family member;
  • The resident’s doctor;
  • The department of health; and
  • The regional health authority.

The court can grant an emergency intervention order or a victim’s assistance order under the Victims of Interpersonal Violence Act.The law defines interpersonal violence to include acts and omissions causing bodily harm or property damage, as well as threats and deprivation of necessities.

The Public Guardian and Trustee (PGT) can instruct a financial institution to freeze assets for up to 30 days to respond to concerns that a vulnerable adult has:

  • Experienced financial abuse; or
  • Lacks decision-making capacity regarding their estate, and their estate is likely to suffer serious damage or loss.

The PGT can also investigate the concerns.

An employee may be eligible for up to ten days leave under The Saskatchewan Employment Act if they have experienced interpersonal or sexual violence, or are providing care for someone who is experiencing interpersonal violence. Five days of the leave are paid leave.

2. Key Laws and Regulations

Health Care

Family Violence

Personal Planning

Privacy

Employment Protections

3. Abuse Response in Care Homes

The Personal Care Homes Act[36] and the Personal Care Homes Regulations[37] regulate care homes in Saskatchewan.

The Regulationsets out the rights of residents, which includes the right “to be free from any actions from the licensee or staff of a punitive nature, including physical punishment, threats of any kind, intimidation, verbal, mental or emotional abuse or confinement.”[38]

Care homes are required to report serious incidents. Serious incidents include neglect, or unlawful conduct toward residents which cause them harm.[39] Incidents must be reported to the following as soon as possible:

  • The resident’s supporter (or if no supporter has been named, a family member);
  • The resident’s doctor;
  • The department of health; and
  • The regional health authority.[40]

A supporter is a person the resident may nominate:

  • (a) to act as an advocate for the resident in the resident’s dealings and transactions with the licensee; and
  • (b) to assist the resident in the resident’s relationship with the licensee.[41]

The care home must give a written report to the department of health stating certain required details, such as:

  • What is the nature of the incident?
  • Who is involved?
  • What has the licensee done to address the incident and prevent it from happening again?[42]

The full text of the Regulation states:

Reportable serious incident

  • 13(1) In this section, “serious incident” means any occurrence at or around the home that affects or may seriously affect the health or safety of residents of the home, including:
    • (a) any occurrence, accident or injury that is potentially life threatening;
    • …
    • (d) any harm or suspected harm suffered by a resident as a result of unlawful conduct, improper treatment or care, harassment or neglect on the part of any person;
    • (e) any incident involving a resident that has been reported to law enforcement officers…
  • (2) A licensee shall:
    • (a) inform the following of any serious incident involving a resident as soon as possible after the incident:
      • (i) the resident’s supporter or, if the resident has not nominated a supporter, a member of the resident’s family;
      • (ii) the resident’s personal physician;
      • (iii) the department;
      • (iv) the regional health authority; and
    • (b) as soon as is reasonably practicable, provide to the department a written report of the serious incident mentioned in clause (a) that indicates:
      • (i) the circumstances leading up to and culminating in the serious incident;
      • (ii) the date and time of the serious incident;
      • (iii) the names of the persons involved in the serious incident;
      • (iv) the names of the persons notified about the serious incident; and
      • (v) any actions taken by the licensee:
      • (A) to solve the problems giving rise to the serious incident; and
      • (B) to prevent recurrences of the serious incident.[43]

Under the Personal Care Homes Act, the Minister of Health also has the power to inspect, investigate and make inquiries to ensure the well-being of residents of care homes.[44]

4.  Regulated Health Professionals and Reporting

4.1  Remedies

In Saskatchewan, there is no single legislation covering all health professionals. Instead, each health profession is regulated under its own Act. The duties to report a health professional who has potentially abused a patient will therefore depend on the provisions of the applicable legislation. This section highlights two of the Acts governing health professionals. To find the duties which apply to a specific health profession, check the Act that governs that profession. Links to each Act are found above in section 2.

The 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. 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 law governing the practice area.

4.2 The Medical Profession Act, 1981[45]

The Medical Profession Act designates the College of Physicians and Surgeons of Saskatchewan as the regulatory body for the medical profession. A person can make a written complaint to the college that a doctor has engaged in improper or unprofessional conduct or does not have the skills to practice.[46]

When the college receives a complaint, it will investigate the matter. The matter is handled by a preliminary inquiry committee if the matter involves unprofessional or improper conduct, or the competency committee if the matter involves competence to practice.[47] After the investigation, the committee sends a report to the council of the college. The council can refer the matter to the competency hearing committee or send the matter to the discipline committee.[48]

If a doctor may be a danger to the public, the council can send the matter to an investigating committee, the majority of which are psychiatrists.[49]

After an investigation or hearing, several actions can be taken, including to:

  • Dismiss the matter;
  • Issue a reprimand;
  • Issue a fine;
  • Require the doctor to undergo education or training;
  • Require the doctor to undergo treatment;
  • Suspend a doctor’s license;
  • Revoke a doctor’s license; or
  • Place restrictions or conditions on a doctor’s practice, such as requiring supervision.[50]

4.3 The Registered Nurses Act, 1988 (RNA)[51]

The Registered Nurses Act governs registered nurses in Saskatchewan and designates the Saskatchewan Registered Nurses Association as the relevant regulatory body. A separate Act, the Registered Psychiatric Nurses Act,[52] governs registered psychiatric nurses.

Under the Registered Nurses Act, any person can submit a written complaint that a nurse has committed professional incompetence or professional misconduct. Professional misconduct includes physical abuse, verbal abuse, and financial abuse.[53]

Upon receipt of a complaint, the investigation committee can investigate the matter and will make a report to the discipline committee recommending either that the discipline committee conduct a hearing or that the matter be dismissed.[54] The discipline committee hears the complaint and determines if the nurse has engaged in professional misconduct or incompetence.[55]

After the hearing, several actions can be taken, including:

  • Dismiss the matter;
  • Issue a reprimand;
  • Issue a fine;
  • Require a nurse to undergo additional training;
  • Require a nurse to undergo treatment or counselling;
  • Suspend a nurses’ registration;
  • Revoke a nurse’s registration; or
  • Place conditions on a nurse’s practice.[56]

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 that 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 Exceptions to confidentiality of personal information under privacy law

In Saskatchewan, there are three pieces of legislation that outline privacy rights:

  • The Freedom of Information and Protection of Privacy Act—applies to provincial public bodies, such as government departments and agencies.[57]
  • The Health Information Protection Act—applies to personal health information;[58] and
  • The Local Authority Freedom of Information and Protection of Privacy Act—applies to municipal public bodies, such as municipal boards or commissions, public libraries, education boards, police services, provincial health authorities, and universities and colleges.[59]

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

Under The Freedom of Information and Protection of Privacy Act, personal information can only be collected for the purposes of a government program or activity.[60] Personal information can only be used or disclosed for the purposes for which it was collected or if the person consents.[61] Personal information can only be disclosed without consent for prescribed reasons, including:

  • Where necessary to protect the mental or physical health or safety of any individual;[62]
  • To assist with a police investigation;[63] or
  • As required or authorized by law.[64]

Under The Local Authority Freedom of Information and Protection of Privacy Act, personal information can only be collected for a municipal body’s programs or activities.[65] Personal information can only be used of disclosed for the purposes for which it was collected, or if the person consents.[66] Personal information can only be disclosed without consent for prescribed reasons, including:

  • Where necessary to protect the mental or physical health or safety of any individual;[67]
  • To assist with a police investigation;[68] or
  • As required or authorized by another law.[69]

The Health Information Protection Act applies to trustees, government institutions, health authorities, care home licensees, and other entities who have custody or control of personal health information. A person “has the right to consent to the use or disclosure of personal health information.”[70] A person has the right to be informed about how their information could be used or disclosed.[71] Personal health information can only be disclosed without consent for prescribed reasons, including:

  • Where the trustee believes, on reasonable grounds, that the disclosure will avoid or minimize a danger to the health or safety of any person;[72]
  • To a health professional body for carrying out their responsibilities, such as discipline of a regulated health professional;[73]
  • For the provision of health or social services to the individual, if disclosure of the information will clearly benefit the health or well-being of the subject individual and it is not reasonably practicable to obtain consent;[74] or
  • As required by another law.[75]

5.2 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.[76] 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;[77]
  • Where the innocence of an accused is at stake;[78]
  • 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 Saskatchewan sets out the duty of confidentiality and applicable exceptions in its Code of Professional Conduct.[79]

  • 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 court to do so;
    • (c) required to deliver the information to the Law Society; or
    • (d) otherwise permitted by this rule.[80]

The Code also permits disclosure of confidential information where there is imminent danger of death or serious injury and disclosure is necessary to prevent this harm.

  • Mandatory Disclosure – Future Harm/Public Safety Exception
  • 3.3-3A A lawyer must disclose confidential information, but only to the extent necessary if the lawyer has reasonable grounds for believing that an identifiable person or group is in imminent danger of death or serious bodily harm and believes disclosure is necessary to prevent the death or harm.[81]
  • Permitted Disclosure
  • 3.3-3B A lawyer may divulge confidential information, but only to the extent necessary:
    • (a) in accordance with rule 3.3-1;
    • (b) in order to establish or collect a fee;
    • (c) in order to secure legal or ethical advice about the lawyer’s proposed conduct;
    • (d) if the lawyer has reasonable grounds for believing that a crime is likely to be committed and believes disclosure could prevent the crime; or
    • (e) if the lawyer has reasonable grounds for believing that a dangerous situation is likely to develop at a court facility.[82]

6. Criminal Prosecution Policy

While criminal law is primarily under the federal jurisdiction, Saskatchewan’s Public Prosecution Policies provides guidance to public prosecutors. There are no policies directly covering elder abuse, but a few of the policies could apply in an elder abuse context.

The Proceeding with Charges policy states that prosecutions should be in the public interest. To determine if proceeding to trial would be in the public interest, the policy lists factors that can be considered. The factors include “the age, intelligence, and physical or mental health or infirmity of the accused or witness.”[83]

The Direct Indictments policy discusses when requesting a direct indictment would be in the public interest.[84] Reasons relevant to elder abuse include:

  • When there is danger of harm to a witness – psychological or physical – if required to testify[85] and
  • Where the age, health or other circumstances relating to witnesses requires their evidence be presented at trial as soon as possible.[86]

The Victim Services policy states that prosecutors must promptly refer certain types of witnesses to victim or witness services for assessment and court preparation. This includes elderly witnesses who appear very fearful of the court process, victims of sexual assault, witnesses who seem likely to receive threats with respect to testifying, and witnesses with special needs.[87]

The Domestic Violence (Partner Abuse) policy states that domestic violence is not a private family matter, but instead a criminal offence that should be prosecuted as vigorously as other serious criminal matters. If the accused is being released on bail, prosecutors should inform the victim so that the victim can take measures to protect their safety. The policy directs public prosecutors to be aware of the complex family dynamics that occur in domestic violence.[88]

The Witnesses – Notification of Victims and Victim’s Next-of-Kin policy states that prosecutors should provide information to victims about the criminal justice system and court process. Prosecutors must also inform victims about aspects of their case that impact their well-being, such as bail, plea agreements, and the disposition of the case.[89]

The Witnesses – Aids to Facilitate Testimony policy and the Witnesses – Persons with Special Needs policy state that prosecutors should determine early on if witnesses will need any assistance to give their evidence in court. The policies state that it is important that all people have full and equal access to the criminal justice system, regardless of how they communicate.[90]

7. Family Violence Protection

The Victims of Interpersonal Violence Act[91] outlines how a person who is experiencing interpersonal violence can obtain an emergency intervention order and a victim’s assistance order. The Interpersonal Violence Disclosure Protocol (Clare’s Law) Act[92] gives people at risk of interpersonal violence the right to obtain information from police on a partner’s history of interpersonal violence.

7.1 Definitions

The definition of interpersonal violence covers physical abuse, damage to property, forced confinement, sexual abuse, harassment, and neglect. The Victims of Interpersonal Violence Act states:

  • (e.1) “interpersonal violence” means:
    • (i) any intentional or reckless act or omission that causes bodily harm or damage to property;
    • (ii) any act or threatened act that causes a reasonable fear of bodily harm or damage to property;
    • (iii) forced confinement;
    • (iv) sexual abuse;
    • (v) harassment; or
    • (vi) deprivation of necessities;[93]

The Actdefines a victim as “a cohabitant who has been subjected to interpersonal violence by another cohabitant.”[94] Cohabitants mean people who are:

  • In a family relationship, spousal relationship, or intimate relationship and have lived or are living together;
  • The parents of one or more children together; or
  • In an ongoing caregiving relationship.
  • a) “cohabitants” means:
    • (i) persons who have resided together or who are residing together in a family relationship, spousal relationship or intimate relationship;
    • (ii) persons who are the parents of one or more children, regardless of their marital status or whether they have lived together at any time;
    • (iii) persons who are in an ongoing caregiving relationship, regardless of whether they have lived together at any time; or
    • (iv) any other persons prescribed in the regulations.[95]

7.2 Who can apply for an order

The following people can apply to the court for an emergency intervention order or victim’s assistance order:

  • The person experiencing abuse;
  • Victim services staff who have received training on these applications;
  • Peace officers;
  • Employees of certain entities appointed under the Child and Family Services Act to assist with these applications; or
  • Any other person with leave of the court.[96]

7.3 Emergency intervention order

A justice of the peace can grant an emergency intervention order if interpersonal violence has occurred and the person experiencing abuse needs immediate protection.[97] Section 3(2) of VIVA sets out the factors that the justice should consider in deciding whether to grant the order, which include a particular vulnerability of the victim.

Criminal charges do not have to be laid for the justice of the peace to grant the order.[98]

  • Emergency intervention order
  • 3(1) An emergency intervention order may be granted without notice by a designated justice of the peace if that designated justice of the peace determines that:
    • (a) interpersonal violence has occurred; and
    • (b) by reason of seriousness or urgency, the order should be made without waiting for the next available sitting of a judge of the court in order to ensure the immediate protection of the victim.
  • (2) In determining whether an emergency intervention order should be made, the designated justice of the peace shall consider, but is not limited to considering, the following factors:
    • (a) the nature of the interpersonal violence;
    • (b) the history of interpersonal violence by the respondent towards the victim or other family members;
    • (c) the existence of immediate danger to persons or property;
    • (d) the best interests of the victim and any child of the victim or any child who is in the care and custody of the victim;
    • (e) the exposure of any child to interpersonal violence;
    • (f) a recent change in circumstances for the respondent such as loss of employment or release from incarceration;
    • (g) controlling behaviour by the respondent;
    • (h) a particular vulnerability of the victim.[99]

Possible terms of the emergency intervention order include:

  • No communication with the person or another specified person;
  • Staying away from a location or person;
  • Exclusive occupation of the residence by the person experiencing abuse and their family members;
  • Removal of the abuser from the residence by a peace officer;
  • Police accompaniment to collect belongings; and
  • Any other terms the court considers necessary.[100]

After the order is granted, all documentation must be sent to the court, who must review the order within three business days. The court can confirm the order or rehear the matter to determine whether the order should be confirmed, changed, or revoked.[101]

7.4 Victim assistance orders

If a person has experienced interpersonal violence, the court can grant a victim’s assistance order. Possible terms of the victim’s assistance order include:

  • No communication with the adult or others that would likely cause annoyance or alarm to the adult;
  • Exclusive occupation of the residence by the person experiencing abuse and their family members;
  • Staying away form a location or person;
  • Removal of the abuser from the residence;
  • Police accompaniment to collect belongings;
  • Giving the adult temporary possession of personal property, including a vehicle or bank cards;
  • Restraining the abuser from dealing with the adult’s property;
  • Requiring the abuser to attend counselling;
  • Ordering the abuser to pay compensation for monetary losses suffered by the person and the person’s children, such as medical and moving expenses; and
  • Any other terms the court considers necessary.[102]

7.5 Confidentiality

The court must keep the victim’s address confidential if requested. The court can order the hearing be held in private. Additionally, the court can order a publication ban on the hearing if having the information be public would not be in the best interests of the victim or would negatively affect the victim or their child.[103]

7.6 Right to Information under IVDPA

Under IVDPA, a person who believes they are at risk of interpersonal violence can apply to the police for a risk assessment of their domestic partner committing interpersonal violence. The risk assessment would be based on sources such as the domestic partner’s criminal record and history. The Interpersonal Violence Disclosure Protocol (Clare’s Law) Act sets out confidentiality and privacy requirements for what information can be disclosed.[104]

8. Financial Abuse by Substitute Decision-Makers

In Saskatchewan, a substitute decision-maker could be:

  • An attorney under an enduring power of attorney (EPOA), chosen by the adult;
  • A property or personal co-decision-maker, appointed by the court; or
  • A property or personal guardian, appointed by the court.

8.1 Attorneys under an EPOA

Appointing an attorney

The Powers of Attorney Act outlines the requirements for an EPOA. An older adult can choose a property attorney, a personal attorney, or both. If the adult appoints both a property and personal attorney, they can be the same person or different people. An adult can also choose more than one person to be property attorney or personal attorney. A personal attorney can act for personal decisions, such as health care and personal care. A property attorney can act for property and financial decisions.[105] The EPOA document can specify the attorney has powers for all property or personal decisions, or limit the attorney’s authority to listed matters or decisions.[106]

By default, an EPOA begins as soon as it is validly signed by the adult and witnesses. However, an EPOA can state that it begins at a later date or when a certain event occurs, such as if the older adult loses capacity. An EPOA continues even after the older adult loses capacity.[107]

Duties of an attorney

An attorney has as several responsibilities under the Act:

  • Act in good faith;
  • Act honestly;
  • Act in the best interests of the adult;
  • Act with the care that could be reasonably expected of someone with the attorney’s experience and expertise;
  • Consider the adult’s wishes when making a decision;
  • Provide accounting of all decisions made if requested by the adult, the Public Guardian and Trustee (PGT) or the court. Certain other persons (such as a family member of the adult) can also request the accounting if the adult does not have capacity; and
  • Provide a final accounting within 6 months of the end of the attorney’s authority.[108]

If an attorney does not provide accounts as required under the Powers of Attorney Act, the court can order the attorney to provide the accounts or terminate the attorney’s authority.[109]

Ending an EPOA

An EPOA can end in several ways:

  • The adult revokes the EPOA in writing while the adult still has decision-making capacity;
  • The EPOA specifies a date on which the attorney’s authority ends;
  • The court appoints a co-decision-maker or guardian;
  • The attorney resigns in writing;
  • The attorney dies;
  • The attorney loses decision-making capacity;
  • The attorney becomes bankrupt or convicted of a criminal offence involving violence, threats, theft, fraud, or breach of trust;
  • Where the adult and the attorney are spouses, if they no longer cohabit as spouses;
  • The adult dies; or
  • The court orders the attorney’s authority is ended.[110]

Any interested person who believes an attorney is abusing their powers can apply to the court to have the court end the attorney’s authority.[111]

8.2 Property co-decision-makers, temporary property guardians, and property guardians

Appointing property decision-makers

The appointment of property co-decision-makers, temporary property guardians, and property guardians is governed by The Adult Guardianship and Co-decision-making Act.[112] The Act sets out principles which must be used in administering the Act, including that:

  • All adults should be presumed to be capable;
  • Adults can communicate in any method;
  • Adults are entitled to be involved in decision-making; and
  • Any assistance must be the least restrictive and intrusive.[113]

  • Principles
  • 3 This Act shall be interpreted and administered in accordance with the following principles:
    • (a) adults are entitled to have their best interests given paramount consideration;
    • (b) adults are entitled to be presumed to have capacity, unless the contrary is demonstrated;
    • (c) adults are entitled to choose the manner in which they live and to accept or refuse support, assistance or protection, as long as they do not harm themselves or others and have the capacity to make decisions about those matters;
    • (d) adults are entitled to receive the most effective, but the least restrictive and intrusive, form of support, assistance or protection, when they are unable to care for themselves or their estates;
    • (e) adults who have difficulty communicating because of physical or mental disabilities are entitled to communicate by any means that enables them to be understood;
    • (f) adults are entitled to be informed about and, to the best of their ability, participate in, decisions affecting them.[114]

A person with a sufficient interest in the adult’s financial welfare, or the PGT, can apply to the court to be appointed property co-decision-maker, property guardian, or temporary property guardian for an older adult.[115]

Scope of Authority

A co-decision-maker shares decision-making authority with the older adult and must help the older adult effect their wishes. A co-decision-maker must comply with any decision made by the adult if the decision is reasonable and would not cause financial harm to the adult.[116]

A property guardian can make any property decisions the adult could make, except making a will.[117]

The temporary property guardian only has the powers the court finds are necessary to protect the adult’s estate and provide for the older adult. This can include the ability to:

  • Have a financial institution freeze the adult’s funds;
  • Put the adult’s income into a frozen account; and
  • Stop the adult’s property from being sold or given away.[118]

Criteria to grant an order

For the court to appoint a property co-decision-maker for the adult:

  • The adult must have reduced decision-making capacity to the extent that they need help making decisions about their estate;
  • The order must be in the adult’s best interest;
  • The adult must need a co-decision-maker appointed; and
  • There are no less intrusive measures available.[119]

For the court to appoint a property guardian:

  • The adult must not have decision-making capacity to make decisions about their estate;
  • The adult must need a property guardian; and
  • There are no less intrusive measures available.[120]

The court can appoint a temporary property guardian if the adult needs a guardian appointed immediately to protect their estate from serious damage or loss, and the criteria to appoint a property co-decision-maker or property guardian are met. The order will be in effect for up to six months. A temporary property guardian’s authority is limited to protecting the adult’s estate from serious damage and to provide the adult with necessities.[121]

Duties under the Act

A property co-decision-maker, property guardian, or temporary property guardian has several duties under the Act:

  • Act diligently;
  • Act in good faith;
  • Act in the best interests of the adult and the adult’s estate;
  • Protect the adult’s civil and human rights;
  • Encourage the adult to participate in decision-making;
  • Encourage the adult to be independent;
  • Interfere in the adult’s life as little as possible;[122]
  • Inform the adult of the decision-maker’s appointment and authority in a manner that the adult may best understand;[123]
  • Within three months of their appointment, provide the courts and the PGT with an inventory of the adult’s estate;
  • Update the inventory if any property is found after the inventory was filed;
  • File an accounting of all decisions and transactions with the court and PGT each year; and
  • File a final accounting within six months of when the adult dies or the decision-maker’s appointment ends.[124]

Changing or ending an order

Certain individuals can apply to the court for a review of the appointment of a co-decision-maker or guardian:

  • The adult;
  • A personal or property decision-maker;
  • A person with a sufficient interest in the adult’s welfare; or
  • The PGT.[125]

The court will review the order and appointment. The court can discharge the decision-maker or make any other order it considers appropriate if:

  • The adult no longer needs a decision-maker;
  • The decision-maker is unable or unwilling to act;
  • The decision-maker does not fulfil their responsibilities or is not suitable to act; or
  • The decision-maker acted improperly or in a way that endangers the adult or the estate.[126]

A property co-decision-maker or property guardian can nominate someone to take their place as decision-maker after they die by stating this in their will. This person will take over as decision-maker, and then must apply to the court to have this confirmed.[127] Such “testamentary nominations” may be reviewed by the court.[128]

8.3 Personal co-decision-makers, temporary personal guardians, and personal guardians

The principles set out in Section 3 of The Adult Guardianship and Co-decision-making Act also apply to personal co-decision-makers and personal guardians.

A person with a sufficient interest in the adult’s personal welfare, or the PGT, can apply to the court to be appointed personal co-decision-maker, personal guardian, or temporary personal guardian for an older adult.[129]

Scope of Authority

A co-decision-maker shares decision-making authority with the older adult and must help the older adult effect their wishes. A co-decision-maker must comply with any decision made by the adult if the decision is reasonable and would not cause harm to the adult.[130]

A personal guardian can make decisions on the adult’s behalf, subject to any limitations or conditions that the court may attach to the order.[131]

The scope of the co-decision-maker or personal guardian’s authority is set out in the court’s order. The court may grant authority in respect of any or all of the matters set out in section 15 of The Adult Guardianship and Co-decision-making Act. These include decisions regarding the adult’s living situation, social life, employment, education, health care, and other matters of daily living.

  • Extent of authority
  • 15 Where the court makes an order pursuant to section 14, the court shall specify which of the following matters are to be subject to the authority of the personal co-decision-maker or personal guardian:
    • (a) decisions respecting where, with whom and under what conditions the adult is to live, whether permanently or temporarily;
    • (b) decisions respecting with whom the adult is to associate and who may have access to the adult;
    • (c) decisions respecting whether the adult should engage in social activities and, if so, the nature and extent of those activities and related matters;
    • (d) decisions respecting whether the adult should work and, if so, the nature or type of work, for whom he or she is to work and related matters;
    • (e) decisions respecting whether the adult should participate in any educational, vocational or other training and, if so, the nature and extent of that training and related matters;
    • (f) decisions respecting whether the adult should apply for any licence, permit, approval or other consent or authorization required by law that does not relate to the estate of the adult;
    • (g) subject to the powers of any litigation guardian, decisions respecting the carrying on of any legal proceeding that does not relate to the estate of the adult;
    • (h) subject to The Health Care Directives and Substitute Health Care Decision Makers Act, 2015, decisions respecting the adult’s health care, including decisions respecting admission to a health care facility or respecting treatment of the adult;
    • (i) subject to the regulations, decisions respecting the restraint of the adult’s movement or behaviour by the use of a device, medication or physical force, where necessary to protect the health or safety of the adult or others;
    • (j) decisions respecting the adult’s diet, dress, grooming, hygiene and other matters of daily living;
    • (k) decisions respecting any other matters specified by the court and required to be made by the personal co-decision-maker or personal guardian in the best interests of the adult.

Neither a co-decision-maker nor a personal guardian may make the following decisions unless expressly authorized by the court:

  • Consent to the withdrawal of life-support systems;
  • Consent to a transplant under the Human Tissue Gift Act;
  • Consent to sterilization;
  • Consent to abortion, except where continuing the pregnancy would cause imminent danger to the adult;
  • Consent to the termination of parental rights;
  • Commence divorce proceedings; or
  • Interfere with the adult’s exercise of religious practices, except those that threaten the adult’s health or safety.[132]

The temporary personal guardian only has the powers the court finds are necessary to protect the adult from serious physical or mental harm.[133]

Criteria to grant an order

For the court to appoint a personal co-decision-maker for the adult:

  • The adult must have reduced decision-making capacity to the extent that they need help making some or all of the personal decisions listed in section 15 of The Adult Guardianship and Co-decision-making Act;
  • The order must be in the adult’s best interest;
  • The adult must need a co-decision-maker appointed; and
  • There are no less intrusive measures available.[134]

For the court to appoint a personal guardian:

  • The adult must not have decision-making capacity to make some or all of the personal decisions listed in section 15 of The Adult Guardianship and Co-decision-making Act;
  • The adult must need a personal guardian; and
  • There are no less intrusive measures available.[135]

The court can appoint a temporary personal guardian if the adult needs a guardian appointed immediately to protect the adult from serious physical or mental harm, and the criteria to appoint a personal co-decision-maker or personal guardian are met. This order is in effect for up to six months.[136]

Responsibilities under the Act

A property co-decision-maker, property guardian, or temporary property guardian has several duties under the Act:

  • Act diligently;
  • Act in good faith;
  • Act in the best interests of the adult;
  • Protect the adult’s civil and human rights;
  • Encourage the adult to participate in decision-making;
  • Encourage the adult to be independent;
  • Interfere in the adult’s life as little as possible;[137]
  • Inform the adult of the decision-maker’s appointment and authority in a manner that the adult may best understand.[138]

Changing or ending an order

See Changing or ending an order above regarding a change or termination in property decision-makers. The same provisions apply to personal guardians.

8.4 The role of the PGT

The PGT can request a property attorney or personal attorney under an EPOA provide accounting for decisions made if someone asks them to. Under the Power of Attorney Act, the PGT has the power to investigate the accounting report to make sure it is accurate.[139]

Under The Adult Guardianship and Co-decision-making Act, when a person applies to the court to have a property co-decision-maker or property guardian appointed, the PGT must be served with a copy of this application. The PGT can take several actions, including:

  • Determining if the adult wants to be represented during the court process;
  • Engaging a lawyer to represent the adult;
  • Inform relatives of the adult about the application;
  • Intervening on the application; or
  • Make inquiries about whether anybody is a trustee for the adult.[140]

After the court has appointed a property co-decision-maker or property guardian, the PGT can investigate the inventory, annual accounting, or final accounting to make sure it is accurate. If the decision-maker fails to file an inventory or accounting, the PGT can request the court review the appointment. If the decision-maker fails to file a final accounting, the PGT can request the court order the final accounting be filed.[141]

The PGT can be appointed as property or personal co-decision-maker, temporary property or personal guardian, or property or personal guardian.[142]

8.5 Protection Measures

Financial institutions

A financial institution can freeze the adult’s funds for up to five business days if financial institution suspects:

  • a vulnerable adult is experiencing financial abuse;
  • the adult does not have decision-making capacity regarding their estate; and
  • the adult’s estate is likely to suffer serious damage or loss,

These powers apply to financial abuse by a property co-decision-maker or property guardian.[143] A vulnerable adult is defined as an individual who has an “illness, impairment, disability or aging process limitation that places the individual at risk of financial abuse.”[144] Financial abuse is defined as “misappropriation of funds, resources, or property by fraud, deception or coercion.”[145] The financial institution must immediately inform the PGT of the bank account being frozen, and provide any financial information it has regarding the adult to the PGT.[146]

Public Guardian and Trustee

If the PGT reasonably believes that the adult is a vulnerable adult and the PGT has received an allegation that the adult (i) has been subject to financial abuse or (ii) lacks decision-making capacity regarding their estate, and their estate is likely to suffer serious damage or loss, then the PGT can instruct a financial institution to freeze a bank account for up to 30 days.[147] The PGT can also investigate the allegation.[148] The PGT’s powers of investigation include the power to:

  • Examine any record in the possession of any person;
  • Require people to provide information the PGT considers necessary to the investigation;
  • Require people produce records;
  • Take copies of records; and
  • Apply to the court for a warrant to enter a premises and retrieve a record.[149]

9. Statutory Employment Leave

Adults who are experiencing interpersonal or sexual violence, or providing care for someone who is experiencing interpersonal violence, may have access to employment leave. The definition of interpersonal violence is the same as the definition in the Victims of Interpersonal Violence Act. Interpersonal violence and sexual violence leave allows an employee to take up to 10 days of leave in a 52-week period. This leave can be taken intermittently or continuously. Five days of the leave are paid leave.

This leave must be taken for the purposes of obtaining certain services, such as to seek medical attention, counselling, housing, victim services, legal advice, or criminal remedies.[150]

The employer can ask for written evidence on why the leave is being taken. The employer must keep any information relating to the leave confidential, unless the employer is required to disclose it to another employee who needs to know the information to conduct their employment duties.[151]

10. Key Contacts

Reporting Elder Abuse

Personal Care Homes Program

To make a complaint regarding a personal care home, send a completed complaint form to:

Attention: Personal Care Homes Consultant (Complaints)
Personal Care Homes Program
Community Care Branch
Ministry of Health
Main Floor – T. C. Douglas Bldg
3475 Albert Street
Regina, SK S4S 6X6

Community Care Branch

1st Floor, 3475 Albert Street
Regina, SK, S4S 6X6

Public Guardian and Trustee

To report allegations of financial abuse of a vulnerable person, contact the Public Guardian and Trustee at:

Mailing Address:
100 – 1871 Smith Street
Regina, SK, S4P 4W4

Government Agencies

Victim Services

There are a number of police-based victim services programs. To find the program covering your police jurisdiction, visit www.saskatchewan.ca/residents/justice-crime-and-the-law/victims-of-crime-and-abuse/help-from-victim-service-units-and-agencies.

211 Saskatchewan

211 Saskatchewan is a free, confidential, 24/7 service that connects individuals to human services in the province by telephone, text, or web chat. It also offers a searchable website with over 6,000 listings of social, community, non-clinical health, and government services across the province.

Community Organizations

Seniors Legal Assistance Panel Program

Older adults (65+) who require legal assistance and are receiving the Federal Guaranteed Income Supplement are eligible to apply to this program. The program is operated by Pro Bono Law Saskatchewan. For more information, contact:

Saskatchewan Seniors Mechanism

The Saskatchewan Seniors Mechanism (SSM) is a non-profit, volunteer organization. It acts as an umbrella to bring together Saskatchewan seniors’ organizations to contribute to a better quality of life for Saskatchewan’s older adults.

#112 – 2001 Cornwall Street
Regina, Saskatchewan S4P 3X9

Provincial Association of Transition Houses

Provincial Association of Transition Houses and Services of Saskatchewan (PATHS) is the member association for agencies that provide intimate partner violence services across Saskatchewan. It organizes events and training and conducts research into relevant issues. Its website has a list of emergency shelters: pathssk.org/get-help-now/.

Mobile Crisis Services

Mobile Crisis Services, Inc. is a non-profit community-based organization. The agency provides integrated and comprehensive social and health crisis intervention services. Services are provided on a 24-hour, seven day a week basis.

West Central Crisis & Family Support Centre

The West Central Crisis and Family Support Centre provides support services to individuals and families experiencing violence and crisis in their lives, as well as outreach programs to communities.

#116-1st Avenue West, Box 2235
Kindersley, SK S0L 1S0

Endnotes

[1] SS 1989-90, c P-6.01.

[2] RRS c P-6.01 Reg 2.

[3] SS 1995, c M-9.3.

[4] SS 1980-81, c M-10.1.

[5] SS 1999, c M-14.1.

[6] RSS 1978m c N-4.

[7] SS 1997, c O-1.11.

[8] SS 1984-85-86, c O-6.1.

[9] SS 2007, c P-0.1.

[10] SS 1996, c P-9.1.

[11] SS 1998, c P-11.11.

[12] SS 2003, c P-14.1.

[13] SS 1997, c P-36.01.

[14] SS 1988-89, c R-12.2.

[15] SS 1993, c R-13.1.

[16] SS 1994, c C-10.1.

[17] SS 1997, c D-4.1.

[18] SS 2001, c D-27.1.

[19] SS 2000, c L-14.2.

[20] SS 2006, c M-10.3.

[21] SS 2010, c O-5.1.

[22] SS 1993, c S-52.1.

[23] SS 1990-91, c S-56.2.

[24] SS 2009, c R-22.0002.

[25] SS 2015, c H-002.

[26] SS 1994, c V-6.02. This statute was previously titled The Victims of Domestic Violence Act.

[27] RSS c V-6.02 Reg 1.

[28] SS 2019, c I-10.4.

[29] SS 2002, c P-20.3.

[30] SS 2000, c A-5.3.

[31] SS 1986, c P-36.3.

[32] SS 1999, c H-0.021.

[33] SS 1990-91, c F-22.01.

[34] SS 1990-91, c L-27.1.

[35] SS 2013, c S-15.1.

[36] PCHA, supra note 1.

[37] PCH Regulation, supra note 2.

[38] Ibid,s 34(1)(j).

[39] Ibid,s 13(1).

[40] Ibid,s 13(2).

[41] Ibid,s 9.

[42] Ibid,s 13(2).

[43] Ibid, s 13(1).

[44] PCHA, supra note 1, s 11.

[45] MPA, supra note 4.

[46] Ibid, s 43.1.

[47] Ibid, ss 43.1 – 45, 47.

[48] Ibid, ss 47.4 – 47.5.

[49] Ibid, s 59.

[50] Ibid, ss 48, 54.

[51] RNA, supra note 14.

[52] RPNA, supra note 15.

[53] Ibid, ss 26, 28.

[54] Ibid, s 28.

[55] Ibid, s 30.

[56] Ibid, s 31

[57] FOIPPA, supra note 33,s 3.

[58] HIA, supra note 32,ss 2-4.

[59] LAFOIPPA, supra note 34, ss 2, 3-4.

[60] FOIPPA, supra note 33,s 25.

[61] Ibid, s 28.

[62] Ibid, s 29(2)(m).

[63] Ibid, s 29(2)(g).

[64] Ibid, s 29(2)(i).

[65] LAFOIPPA, supra note 34, s 24.

[66] Ibid, ss 27, 28.

[67] Ibid, s 28(2)(l).

[68] Ibid, s 28(2)(g).

[69] Ibid, s 28(2)(i).

[70] HIPA, supra note 32,s 5.

[71] Ibid, s 9.

[72] Ibid, s 27(4)(a).

[73] Ibid, s 27(4)(h).

[74] Ibid, s 27(4)(j).

[75] Ibid, s 27(4)(l).

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

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

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

[79] Law Society of Saskatchewan, Code of Professional Conduct, Regina: Law Society of Saskatchewan, 13 December 2019, online: <www.lawsociety.sk.ca/regulation/act-code-and-rules/code-of-professional-conduct-and-amendments/>.

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

[81] Ibid, ch 3 (3.3-3A).

[82] Ibid, ch 3 (3.3-3B).

[83] Saskatchewan, Justice and Attorney General, Public Prosecution Policies, Subject: Prosecutions – Proceeding with Charges, online: <publications.saskatchewan.ca/#/products/81205>.

[84] Saskatchewan, Justice and Attorney General, Public Prosecution Policies, Subject: Direct Indictment, online: <publications.saskatchewan.ca/#/products/81169>.

[85] Ibid, at 1.

[86] Ibid.

[87] Saskatchewan, Justice and Attorney General, Public Prosecution Policies, Subject:  Referrals to Victim Services, online: <publications.saskatchewan.ca/#/products/81213>.

[88] Saskatchewan, Justice and Attorney General, Public Prosecution Policies, Subject: Domestic Violence (Partner Abuse), online: <publications.saskatchewan.ca/#/products/81190>.

[89] Saskatchewan, Justice and Attorney General, Public Prosecution Policies, Subject: Witnesses – Notification of Victims and Victim’s Next-of-Kin, online: <publications.saskatchewan.ca/#/products/81219>.

[90] Saskatchewan, Justice and Attorney General, Public Prosecution Policies, Subject: Witnesses – Aids to Facilitate Testimony, online: <publications.saskatchewan.ca/#/products/81216>; Saskatchewan, Justice and Attorney General, Public Prosecution Policies, Subject: Witnesses – Persons with Special Needs, online: <publications.saskatchewan.ca/#/products/81220>.

[91] VIVA, supra note 26.

[92] IVDPA, supra note 28.

[93] VIVA, supra note 26, s 2(e.1).

[94] Ibid, s 2(i).

[95] Ibid, s 2(a).

[96] Ibid, s 8; VIV Regulation, supra note 27, s 3.

[97] Ibid, supra note 26, s 3.

[98] Ibid, s 3(2.1).

[99] Ibid, s 3(1), (2).

[100] Ibid, s 3(3).

[101] Ibid, ss 5-6.

[102] Ibid, s 7.

[103] Ibid, s 9.

[104] IVDPA, supra note 28,s 3.

[105] POAA, supra note 29,ss 2, 4.1, 7.

[106] Ibid, s 14.

[107] Ibid, ss 3, 8.1, 9.

[108] Ibid, ss 15, 18, 18.1.

[109] Ibid, s 18.

[110] Ibid, s 19.

[111] Ibid, s 19(2).

[112] AGCA, supra note 30.

[113] Ibid, s 3.

[114] Ibid, s 3.

[115] Ibid, s 30.

[116] Ibid, s 42.

[117] Ibid, s 43.

[118] Ibid, s 44.

[119] Ibid, s 40.

[120] Ibid, s 40.

[121] Ibid, s 44.

[122] Ibid, s 50.

[123] Ibid, s 45.

[124] Ibid, ss 53, 54, 54.1.

[125] Ibid, s 66.

[126] Ibid, s 67.

[127] Ibid, s 64.

[128] Ibid, s 66.

[129] Ibid, s 6.

[130] Ibid, s 17.

[131] Ibid, s 18.

[132] Ibid, s 22.

[133] Ibid, s 19.

[134] Ibid, s 14.

[135] Ibid, s 14.

[136] Ibid, s 19.

[137] Ibid, s 25.

[138] Ibid, s 20.

[139] Ibid, s 18.

[140] Ibid, ss 31, 36-37.

[141] Ibid, ss 53, 54, 54.1.

[142] Ibid, ss 6, 30.

[143] PGTA, supra note 31, s 40.5.

[144] Ibid, s 40.5(1)(c).

[145] Ibid, s 40.5(1)(a).

[146] Ibid, s 40.5.

[147] Ibid, s 40.6.

[148] Ibid, s 40.7.

[149] Ibid, ss 40.7, 40.8, 40.9.

[150] SEA, supra note 35,s 2-56.1.

[151] Ibid, s 2-56.1.

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