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Sibling Rivalry and Other Cliches

The term “Elder Abuse” has become increasingly prevalent in the media over the past few years. The term means different things to different people. Television programs and feature articles in newspapers have occasionally chronicled tragic occurrences of physical mistreatment of residents of long-term care facilities.

Apart from such physical abuse and neglect of the elderly, financial abuse is also increasingly reported in the media. Terms such as “scam artist” and “predator” are commonly invoked to describe those who seek to defraud the elderly. Police forces in urban centres commonly have investigators exclusively assigned to the protection of the elderly (and others) from such threats. The Public Guardian and Trustee has a similar mandate in the civil context. In Toronto, the Advocacy Centre for the Elderly has the protection of the elderly as one of its mandates.

But the reality, in fact, is that allegations of financial abuse of the elderly are most often asserted, not against strangers, but against relatives or friends. For instance, a son, daughter, or other family member entrusted with responsibility for the finances of an aging relative, will often operate under the scrutiny of his or her siblings or other relatives. Such persons rarely have a strictly objective assessment of their relatives and their view, rightly or wrongly, may be clouded to some extent by pre-existing opinions or, for lack of a better term, “baggage”. As such, the inflammatory language of “elder abuse” is best viewed by all concerned with some skepticism until all of the facts have come to light.

In previous blogs, we have considered the responsibilities of an attorney under power of attorney for property and the legal nature of the relationship between the grantor and the attorney. However, in our litigation practice, the nastiest fights often erupt entirely unbeknownst to the grantor who is often incapable. A common scenario sees the Court often asked to make inquiry into the relationship between the grantor and the attorney by a more “distant” sibling (either geographically or otherwise).

This week’s blogs will examine various issues that arise in power of attorney litigation or capacity litigation. As we will see, the issues are multi-faceted and involve questions such as: Who did the parent want to look after his or her affairs if they became incapable? Does the person making the allegation have any right to seek the assistance of the Court? What is the significance of joint accounts?

More tomorrow. Have a great day! David