Tag: elder abuse
Our readers will all be familiar of the issue of elder abuse, and the various forms that it can take. It is also well-known that elder abuse if underreported, giving rise to challenges in determining just how common it is and how incidence rates may be fluctuating within the context of our aging population.
A new study by Comparitech explores the issue of the underreporting of elder abuse and extrapolates reported incidents and studies regarding underreporting to gain an appreciation of how commonly it is actually occurring in the United States. Comparitech estimates that at least 5 million cases of financial elder abuse occur every year in the United States alone. While damages of $1.17 billion are reported, it is believed that the actual losses to seniors total $27.4 billion.
Technology also appears to be playing a role in increasing rates of elder abuse. Comparitech found that 1 in 10 seniors were victims of elder abuse and that the use of debit cards have become the most common tool in defrauding them of their funds. With phone and email scams on the rise in recent years, underreporting is anticipated to become a growing problem while incidence rates continue to increase without any way to determine exactly how many seniors are affected.
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Although knowledge and understanding of the issue of elder abuse is growing, I don’t think we have yet arrived at a point where it is openly discussed among different groups of people, or where victims of abuse feel completely comfortable coming forward.
In New Brunswick, the Abuse and Neglect of Older Adults Research Team (ANOART) is conducting research into abuse of older adults, and specifically looking at how abuse affects older men and women differently. This article discusses ANOART’s work and an upcoming conference on this topic.
According to the ANOART, older men more often suffer abuse from their children, but older women are more likely to experience intimate partner violence. This specific type of abuse in relation to older women is not mentioned in discussions of elder abuse as often as other types of abuse, such as financial abuse, or general physical abuse. However, ANOART has found that intimate partner violence against women earlier in life does not stop later in life, but rather evolves.
Although the aggressor of intimate partner violence may be less physically capable of physical abuse as they age, the older woman who is being abused may still feel pressure not to speak out, as to do so may create tension or conflict within their family. Older women may also be financially dependent on their partner, which can be a significant barrier to reaching out.
Services for intimate partner violence are usually focused and targeted at younger women, leaving a gap when it comes to older women. ANOART is working to break the stigma surrounding intimate partner violence against older women, to spread information, and to raise awareness. The hope is that this will assist in reaching out to those who need help more effectively, and make it easier for olden women to seek help.
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Many of us are familiar with the concept of “elder abuse” or “elder neglect”, however, it is not always clear what that entails. WEL Partners consulted with the Toronto Police Services in developing an information guide for officers, on this very topic. It is now a guide that has been distributed to officers in the field.
Elder abuse/neglect “is any action or inaction, by a person in a position of trust, which causes harm to an older person”, as the guide indicates. As Toronto Police Services officers are often the only point of contact for older adults with the “outside world”, they are also often their only real chance of getting the help they need.
The guide lists various reasons as to why elder abuse/neglect is often under reported by the older adults that are the victims of such treatment:
- dependence on abuser/family member
- rationalization/minimization of the abuse
- denial of the abuse
- lack of recognition of abuse
- physical inability to report abuse
- feelings that they will not be believed
In the absence of victim/witness statements that are often relied on as evidence, the officers investigating these situations should be able to recognize some subtle warning signs of potential abuse of older individuals.
Some common types of abuse are noted as follows:
- Financial abuse
- Physical abuse
- Psychological abuse
The report describes various red flags for each of the categories listed of the common types of abuse. It further describes some additional considerations such as the mental capacity of the senior adult and the following questions to consider in assessing whether capacity is present:
- ability to understand the information needed to make a decision; and
- ability to appreciate the consequences of making, or not making, a decision.
For more information on this valuable resource in assessing whether the circumstances at hand show signs of elder abuse/neglect, see the Elder Abuse & Neglect: A Guide for Police Officers.
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I recently came across several articles (one of which can be found here) regarding the elder financial abuse of a senior gentleman in Moncton, New Brunswick. Around 2013, Mr. Goguen had been living in the home that he owned, with tenants residing in part of the property. Upon deciding to sell his home, Mr. Goguen was referred to Ms. Hannah and Mr. Poirier, licensed real estate agents in New Brunswick. After the home had been listed for sale for some time, without success, Ms. Hannah apparently told Mr. Goguen that his home was in such deplorable condition that it would be impossible to sell without making certain repairs (which Ms. Hannah says Mr. Goguen could not afford) and removing the tenants (whom Ms. Hannah has claimed were using drugs and not paying rent).
As a result of the alleged difficulty in selling Mr. Goguen’s house, he, Ms. Hannah, and Mr. Poirier entered into an agreement whereby Ms. Hannah and Mr. Poirier purchased Mr. Goguen’s home. The terms of the arrangement were not favourable to Mr. Goguen, and it appears that Ms. Hannah and Mr. Poirier did not follow through on certain aspects of the agreement.
The Financial and Consumer Services Commission, which regulates real estate agents in New Brunswick, has revoked Ms. Hannah and Mr. Poirier’s real estate licenses. The Commission stated that Ms. Hannah and Mr. Poirier committed financial abuse of a senior and took “outrageous and egregious advantage” of Mr. Goguen. The Public Trustee of New Brunswick has now become involved on Mr. Goguen’s behalf, and has filed a statement of claim against Ms. Hannah and Mr. Poirier, seeking $83,320.00, characterized as the amount owing to Mr. Goguen.
We’ve blogged about elder abuse a number of times. Unfortunately, due to factors such as isolation, physical difficulties, and cognitive impairments, elderly people are often vulnerable to abuse. Given this vulnerability, and the circumstances in which abuse occurs, it can go undetected for a significant amount of time. In such situations, it may be too late to make the elderly person “whole” if the abuse is not discovered until it is too late.
Fortunately in Mr. Goguen’s case, despite the fact that it took a number of years, the Public Trustee discovered the abuse and is now taking steps to protect Mr. Goguen and recoup funds owed to him by his abusers. However, the Public Trustee is seeking the amount of approximately $83,000.00, which may not fully reimburse Mr. Goguen for the value of the house had it been sold to a normal third-party purchaser. Additionally, one of the articles also notes that Mr. Goguen had named Ms. Hannah and Mr. Poirier as his attorneys, and also executed a will naming them as executors and beneficiaries of his estate. It is unclear whether the Public Trustee has sought any relief in this regard. As such, even though the Public Trustee may be pursuing relief on Mr. Goguen’s behalf, it is an unfortunate possibility that he may continue to feel the effects of the abuse.
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A few weeks ago, I received a voicemail from a robotic sounding voice that had me chuckling. According to the robot, court proceedings had been started against me for failure to pay my taxes. If I didn’t immediately call them back, they would issue an arrest warrant to “get [me] arrested”. While I laughed at the absurdity of the message, the sad reality is that many people fall prey to scammers.
Elderly people can be especially appealing targets for scammers and abusers due to a mix of factors, including social isolation. A recent CBC news article out of Moncton highlights the type of financial abuse to which elderly people may fall prey. The CBC reported that two real estate agents entered into a listing agreement in 2013 with an elderly man. They eventually entered into a further agreement allowing the real estate agents to purchase the home for three quarters of the listing price and requiring the victim to provide an interest-free loan to the agents along with credits towards the purchase price. Overall, the victim received approximately $17,000.00 in exchange for his home.
Not only were the real estate agents able to scam the victim on the sale of his home, the victim also named the two agents as his attorneys for property and as trustees and sole beneficiaries of his estate under his Will.
Eventually, the abuse was discovered when doctors determined the man lacked capacity to make decisions and contacted New Brunswick’s public trustee office. The public trustee’s office, in turn, passed along news of what happened to New Brunswick’s regulator for real estate agents, who have now suspended the licences of the agents for at least one year.
This story showcases just one of the ways in which a person might become a victim of financial abuse. Elderly people without the social support of family members or strong community ties may be especially vulnerable to this abuse. This story also highlights, however, the important role 3rd parties can play in catching and preventing elder abuse. This can be seen by the intervention of hospital staff, the public trustee office, and the professional regulators.
While the article doesn’t explain whether the victim had his power of attorney and will drafted by a lawyer, this article will hopefully also serve as a reminder to drafting solicitors to probe these issues when retained by clients who may be vulnerable to undue influence and abuse.
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I recently read this article from the New York Times, which discusses the Will of Harper Lee, author of “To Kill a Mockingbird”, as well as some of the events that occurred several years prior to Harper Lee’s death. Harper Lee died in 2016, at the age of 89. In the years leading up to her death, there was some question as to her capacity, and possible vulnerability to coercion or undue influence.
The New York Times article states that Ms. Lee had had a stroke in 2007 and also had severe vision and hearing problems. Ms. Lee resided in an assisted living facility before her death. The article also describes the position taken by counsel for Ms. Lee as part of a copyright dispute in 2013, where counsel stated that Ms. Lee had been taken advantage of and coerced into signing away her copyright because she was “an elderly woman with physical infirmities that made it difficult for her to read and see.”
A couple of years ago, in 2015, Ms. Lee published her second novel, “Go Set a Watchman”. It turned out that this novel had been an earlier draft of her extremely popular book, “To Kill a Mockingbird”, which is purported to have been discovered by Ms. Lee’s lawyer, Tonja Carter, in 2014. There was some controversy surrounding the publication of “Go Set a Watchman” on the basis that Ms. Lee had not actually consented to the manuscript being published, and may have been manipulated into doing so. The publication of a new book was particularly remarkable given that Ms. Lee had only ever published one book prior to “Go Set a Watchman”—namely, “To Kill a Mockingbird”, which was published in 1960. However, an investigation was performed, and a determination made that there had been no elder abuse of Ms. Lee.
After Ms. Lee’s death, her Will had not been made a matter of public record, as a result of the successful efforts by Ms. Carter (named in the Will as executor) to have the Will sealed on the basis that Ms. Lee, who was a very private person, would have wanted her Will to remain private. It was only unsealed recently after litigation by the New York Times, and after Ms. Lee’s estate withdrew its opposition to the Will being unsealed.
The Will was signed only 8 days before Ms. Lee’s death, and apparently directs that the bulk of her assets be transferred into a trust formed by Ms. Lee in 2011. Ms. Carter is one of the trustees of this trust. Further documents relating to the trust are not public, and accordingly, very few details are known about it.
Given the questions surrounding Ms. Lee’s potential vulnerability in the years leading up to her death, it will be interesting to see whether anything further develops in relation to her estate, or the trust which apparently will hold most of the assets of Ms. Lee’s estate.
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In a recent decision of the Superior Court, Justice Mew found that,
“In appropriate circumstances, I conclude that the relationship between an elderly resident of a retirement home and a personal support worker can also be a fiduciary one”.
Hoyle (Estate) v. Gibson-Heath, 2017 ONSC 4481, is a civil proceeding that was commenced after Ms. Gibson-Heath, a personal support worker, was criminally convicted of stealing $229,000.00 from Clifford Hoyle, an elderly resident of the retirement home where Ms. Gibson-Heath worked. Ms. Gibson-Heath was sentenced to 18 months of imprisonment and a restitution order was made for her to pay the shortfall between the full amount stolen and any amounts recovered by the Crown.
At the time of the proceeding before Justice Mew, Ms. Gibson-Heath was a discharged bankrupt and the Estate Trustees of the Estate of Clifford Hoyle were seeking an order that the restitution order survives Ms. Gibson-Heath’s bankruptcy and a civil judgment in the amount of the shortfall amongst other relief. Justice Mew determined that the restitution order survives Ms. Gibson-Heath’s bankruptcy pursuant to section 178(1)(a) of the Bankruptcy and Insolvency Act but he also went further to consider whether section 178(1)(d) would also apply as it relates to “any debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity or, in the Province of Quebec, as a trustee or administrator of the property of others”.
Justice Mew’s analysis can be found at paragraphs 16 to 19 of his reasons. Of note, his Honour commented as follows,
“Ms. Gibson-Heath’s role was to look after Mr. Hoyle. To act in his best interests. As an elderly gentleman, who was already in the early stages of dementia when he started to reside at Fairfield Manor East at the end of 2006, Mr. Hoyle was undoubtedly vulnerable to any abuse of the trust that he placed in those who cared for him.”
Ms. Gibson-Heath did not respond to this proceeding and Justice Mew also found that this was an appropriate case for substantial indemnity costs due to Ms. Gibson-Heath’s fraudulent conduct (click here for the costs decision).
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Elder financial abuse is a growing concern. What is being done in Ontario to prevent it?
I recently came across a new service called Estate Protect which acts as a registry and fraud monitoring service for important estate documents, including powers of attorney.
Lawyers (on behalf of their clients) are able to register estate planning documents with Estate Protect being a secure and accessible place. The idea is that the most recent documents, and a record of any changes, are available to the appropriate person when necessary to ensure that valid estate planning documents are used (and relied upon).
Using a power of attorney document as an example, through Estate Protect’s notification service, designated parties are made aware when someone tries to rely on a power of attorney document. If the document is the valid power of attorney, the notified individual need not take any steps. However, should the power of attorney be, for example, a fake or previously revoked power of attorney, or should the transaction seem suspicious, the notified individual has the opportunity to intervene to avoid misuse.
The service also allows people accepting instructions, such as banks, to determine whether the power of attorney is valid before acting on instructions.
It makes sense that Estate Protect relies on tackling financial elder abuse through preventative measures, as opposed to remedial options.
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Approximately a month ago, it was reported that an Ontario woman had been charged criminally in relation to an elder abuse investigation. The woman will apparently be appearing in court this Monday, June 5, 2017.
The Ontario Provincial Police attended at a home in Warwick Township, Ontario to assist health-care workers in checking on the well-being of a resident. The home was in a state of squalor, and upon searching the house, they located an elderly woman who was incoherent, in need of medical intervention, and was taken to hospital.
We have previously blogged about the criminal consequences of elder abuse in the context of a financial abuse situation (here and here). However, financial elder abuse is not the only form of abuse that can constitute a crime. Physical, emotional and mental abuse, as well as neglect, can also lead to criminal charges. This can be seen in the situation of the elderly woman in Warwick Township, where a woman was charged with failure to provide the necessaries of life in relation to the elderly woman’s condition after the elderly woman had been found in ill-health and in a filthy environment.
Section 215(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 establishes a legal duty for every one to provide necessaries of life to a person under his or her charge if that person (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw him or herself from that charge, and (ii) is unable to provide him or herself with necessaries of life. Section 215(2) makes it an offence if a person fails to perform that duty if the failure “endangers the life of the person to whom the duty is owed or is likely to cause the health of that person to be injured permanently.” The punishment for this offence can be imprisonment for up to five years for an indictable offence, or imprisonment for up to 18 months on summary conviction.
The above is of course only one example of a criminal offence that may arise as a result of elder abuse. Many types of elder abuse will fall under the general criminal code offences, such as assault, intimidation, theft, and forgery.
The issue of elder abuse is a very real one, and is taken seriously by police and the justice system. It is important for victims of elder abuse, and anyone who suspects elder abuse, to be aware that there are options for reporting the abuse, preventing future abuse, and punishing the abuser.
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The Retirement Homes Regulatory Authority was established in 2010 by the Ontario government under the Retirement Homes Act, 2010, S.O. 2010 Chapter 11 (the “Act”), and acts as a licensing body for retirement homes in Ontario.
The fundamental principle of the Act is to ensure that a retirement home is “operated so that it is a place where residents live with dignity, respect, privacy and autonomy, in security, safety and comfort and can make informed choices about their care options.”
Section 67 of the Act states:
- (1) Every licensee of a retirement home shall protect residents of the home from abuse by anyone.
(2) Every licensee of a retirement home shall ensure that the licensee and the staff of the home do not neglect the residents
Section 67 encompasses financial abuse as well. According to Regulation 166/11 of the Act, financial abuse is defined as “any misappropriation or misuse of a resident’s money or property.” Pursuant to the Act, a licensee must establish a trust fund if they are in charge of money from a resident; however, the Act is silent with respect to loans between a resident and the licensee.
Due to the normal process of aging, financial decision-making ability naturally declines and, as such, it is important that places of trust, such as retirement homes, avoid situations that may lead to financial abuse. Residents of a retirement home are dependent on the operator of the home for housing, safety and care. This dependency creates an expectation of trust between the staff and the residents. Moreover, many elderly individuals may lack mobility, suffer from visual impairment, or may not have family that comes and visits them, resulting in more of an increased attachment or trusting relationship with individuals at the residence.
Where a retirement home resident is competent, the issue of whether financial abuse exists will depend on the circumstances surrounding the home. For example, it is a possibility that a perfectly competent retirement home resident may have a friendship with a staff member of the residence, and desire to give them a monetary loan or gift as a sign of friendship.
It is important not to assume that every case of an elderly person in a residence providing a loan to staff is financial abuse, as assuming vulnerability in adults may lead to paternalism. Furthermore, pursuant to the Quebec case of Quebec (Commission des droits de la personne et des droits de la jeunesse) v. N. (R.), 2016 CarswellQue 13351, there is a “need to balance the protection of aged persons against exploitation, on the one hand, and the scrupulous need to respect their autonomy in exercising their legal rights on the other hand.”
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