Elder Law

What is Elder Law?

Source: WEL Partners

As we grow older, laws that more significantly affect older people become more important.

Elder abuse, or the abuse of older adults, is often defined as any act or omission that harms a senior or jeopardizes his or her health or welfare.

Elder abuse can take place in the home, in other residential settings, or in the community. Elder abuse can be defined in different ways and can cover an infinite number of situations. Any act that harms or threatens to harm the health or welfare of an elderly person is abuse, which can take on many forms, including physical, psychological and financial. Elder abuse is a form of neglect. It is estimated that between four and ten per cent of Ontario’s seniors experience some type of abuse.

Elder law and abuse involve many far-reaching practice areas and not just Estate Trusts and Capacity litigation. Lawyers work with the elderly in many practice areas and bring expertise accordingly in the appropriate area of law.

What is Elder Financial Abuse?

Source: WEL Partners

According to the Canadian Department of Justice, financial abuse is the most commonly reported type of abuse against older adults. Financial abuse comes in various forms. It can consist of the improper use of joint bank accounts, forgery or abuse involving a Power of Attorney document, sharing an older adult’s home without payment or sharing in expenses, misuse, appropriation, or theft of an older adult’s assets, transfer of real property, ATM fraud and other harmful acts.

Often financial abuse is conducted by a family member upon whom the older adult is dependent and who is potentially influenced by or controlled and victimized. Financial abuse can also be inflicted by a caregiver, service provider, or other person in a position of power or trust (where there is a power imbalance). The National Initiative for the Care of the Elderly (NICE) defines financial abuse as:

“an action or lack of action with respect to material possessions, funds, assets, property, or legal documents, that is unauthorized, or coerced, or a misuse of legal authority;” or where someone tricks, threatens or persuades older adults out of their money, property or possessions.

Financial abuse can occur through:

Indicators of financial abuse
on an older adult include:

Once an abuse is reported or discovered, there are two avenues that can be followed in remedying elder financial abuse: either pursuit through civil courts (lawsuits between private parties) or through criminal courts (where an individual is charged under the Criminal Code by the police or crown prosecutor).

Civil remedies are mainly about restitution, meaning placing the victim back into the place he/she would have been had the wrongful act never happened. In other words – to have the perpetrator pay back the money with punitive result (the payment plus punitive payment of money is called “damages”). While there may well be some element of restitution in criminal cases, the guilty perpetrator would likely be sentenced to jail or probation or some other punitive outcome, there may not be any return of the money. In some civil decisions, courts have signaled their willingness to order custodial sentences where necessary, especially in breach of trust cases. Another remedy available to a civil court is to make a “declaration” that real property or a bank account for example, beneficially belongs to the older adult, where the perpetrator wrongfully assumed control of it.

Some of the civil remedies that a court can order in financial abuse situations include:

Source: WEL Partners

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