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:
Financial abuse can occur through:
- Monetary gifts that are involuntary – e.g. gifts made under coercion, undue influence or threats;
- Misuse of credit card or bank card by a friend or family member given access to the PIN number in order to assist the older person with specific activities;
- Inter-family loans that are not repaid and repeated borrowing;
- Misuse of a power under a general or enduring power of attorney;
- Misuse of funds in a joint account created ostensibly to allow another person to assist the senior with financial transactions (however, the person spends the money for their own uses);
- Private care agreements, whereby a senior transfers title of property in exchange for anticipated care that is not provided;
- Withholding of the older person’s pension cheque by attorney or other decision-maker or family member with access to the older person’s mail;
- Forging the older person’s name or altering documents to get permission to access or dispose of assets, including forging cheques;
- Theft of cash, credit cards, bank cards, or valuables;
- Cashing in investments without permission;
- Forcing a senior to sign over their home or vehicle;
- Predatory marriage; and
- Pressuring an older person to sign documents that they do not have the capacity to understand.
Indicators of financial abuse
on an older adult include:
- changes in living arrangements, such as previously uninvolved relatives or new friends moving in, with or without permission or consent;
- unexplained or sudden inability to pay bills;
- unexplained or sudden withdrawal of money from accounts;
- poor living conditions in comparison to the value of the assets;
- changes in banking patterns;
- changes in appearance;
- controlling spending;
- confusion or lack of knowledge about a financial situation and execution of legal documents;
- being forced to sign multiple documents at once, or successively;
- being coerced into a situation of overwork and underpay;
- unexplained disappearance of possessions (lost jewelry or silverware);
- changes in Power of Attorney (“POA”) documents;
- necessaries of life denied or not provided by an attorney under a POA (shelter, food, medication, assistive devices);
- being overcharged for services or products by providers; or being denied the right to make independent financial decisions.
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:
- An Order for the removal of an Attorney under a Continuing Power of Attorney for Property;
- An Order to “account”;
- An Order for repayment of money improperly taken; and
- An Order to “set aside” a transfer of title or bank account into joint names.