The proposed amendments are intended to address financial exploitation and diminished mental capacity in vulnerable clients (i.e. those at risk of exploitation because of an illness, impairment, disability or aging process limitation). Registrants (including those regulated by SROs) would be required to take reasonable steps to get a name and contact details of a trusted contact person that the registrant could contact in prescribed circumstances. The TCP would be a resource to help protect the client, but wouldn’t be the same as an attorney under a POA or have the authority to transact. The proposed amendments would also provide a “safe harbour” to place a temporary hold on the purchase or sale of a security or withdrawal or transfer of securities or cash from an account if the firm reasonably believes that a vulnerable client is being financially exploited or that the client does not have the mental capacity to make financial decisions with respect to an instruction given by them. The firm would have to take a number of steps if they did put a temporary hold on an account, including providing the client with notice of any decision to continue the hold at least every 30 days.
Overview of the Council’s Comments:
We think the Proposed Amendments are a good first step to help ensure that registrants keep vulnerable client issues top of mind. However, we believe the CSA must take a more holistic view to effectively address potential elder and vulnerable client financial exploitation by continuing to develop and consider new approaches to these challenges, while recognizing that registrants with investment expertise may not be best suited to identify psychological symptoms of cognitive impairment. It is important for registrants to have support from as many resources as possible to help protect vulnerable clients. We thus urge the CSA to consider expanding the Proposed Amendments subsequent to their implementation.
With respect to the trusted contact person requirements, we believe the Proposed Amendments are an important first step to start a conversation between registrants and their clients. The proposed guidance to the effect that a trusted contact person does not have the authority to transact on the client’s account or make decisions on behalf of the client by virtue solely of being named a trusted contact person is an important safeguard that should be maintained.
We also believe that the temporary hold requirements should apply where there exists a reasonable belief that the client does not have the mental capacity to make financial decisions rather than just limited to cases of financial exploitation of vulnerable clients. If there is this belief of diminished capacity, the temporary hold period will allow a registrant the opportunity to investigate, contact the TCP or escalate to an appropriate authority, and thus reduce the opportunity for the mishandling or dissipation of assets. We also believe that the temporary hold requirements should apply to the purchase or sale of securities and the transfer of cash or securities to another firm. Lastly, with respect to temporary holds, the Proposed Amendments would require a registered firm to further review the facts, once a hold is placed, that caused the firm or individual to place the temporary hold. Additional rules and guidance with respect to this “internal investigation” and what is expected of registrants during this period would be welcome.