Tag: elder abuse
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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A perpetrator of elder abuse has recently been sentenced to three years in prison by an Ontario Court.
The man from Markham, Ontario had obtained assistance from a friend, an employee of a major national bank, in creating a power of attorney, which he put forward as a document prepared for and executed by his mother, Royale. Royale’s savings, which had been in the hundreds of thousands of dollars, were depleted to less than $15 and she was forced to live in a public nursing home.
After she learned that her funds had been stolen, Royale reported her son’s actions to the police before her death. In her videotaped police statement, Royale says, “It makes me very sad, but he has to pay the consequences.” She was visibly upset by the idea of placing charges against her son, but nevertheless proceeded to do so. In June of this year, Royale’s son was convicted of both theft and fraud over $5,000.
Unfortunately, situations like that involving Royale are all too common. A recent study suggests that one in ten American seniors are affected by elder abuse. Further, it is estimated that only one in ten victims of elder abuse actually report it. Many seniors may be reluctant to report elder abuse due to fear of what the abuser may do to them and a belief that the police and/or social agencies will not be able to provide meaningful assistance.
Incidents of elder abuse highlight the importance in establishing incapacity plans and in appointing attorneys for property and personal care that can be trusted and who can protect the grantor’s rights if he or she is unable to do so.
Royale’s other surviving children now plan to commence civil proceedings against their brother and the financial institution whose employee was involved in the creation and use of the fraudulent power of attorney.
This recent sentence sends a strong message about the seriousness of elder abuse and the lengths to which the justice system will go in order to punish those who take advantage of members of our aging population.
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A recent article in the Toronto Star discusses how the current state of the law in Ontario makes elderly individuals vulnerable to predatory marriages. In Ontario, under section 16 of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”), a will is automatically revoked by the marriage of the testator.
There is a discrepancy regarding the capacity required to
make a will and the capacity required to marry. In Banton v Banton,  OJ No 3528, the court considered a situation in which an 88 year old man, George, married a 31 year old waitress at his nursing home, Muna. After their marriage, amidst concerns regarding his capacity, George prepared a will leaving everything to Muna. The court found that George did not have testamentary capacity and that his will was invalid, but found that the capacity to marry was a lower standard, requiring that an individual be capable of understanding the nature of the relationship and the obligations and responsibilities it involves. Accordingly, George and Muna’s marriage was valid and George was found to have died intestate.
The issue is that, even if wills executed following a potentially predatory marriage are found invalid as a result of incapacity or undue influence, the marriage may still be valid, and thus the intestacy provisions of the SLRA will be relevant. Under Part II of the SLRA, if a deceased passes with a spouse and children, the spouse is entitled to a preferential share in the amount of $200,000, in addition to a share of the residue of the property after payment of the preferential share.
The Star article suggests that the law nullifying wills on marriage makes it easy for a predatory bride or groom to take advantage of elderly individuals. It points out that Ontario law regarding revocation of wills upon marriage is lagging behind other provinces, namely Alberta, British Columbia and Quebec, none of which statutorily revoke wills after marriage. In Alberta in particular, it was noted that the remedial legislation was made after a study revealed that few people were aware that wills did not survive a new marriage.
It is therefore possible in Ontario that an elderly person who intends to leave their entire estate to their children could be caught unaware that their existing will was revoked by marriage, with no knowledge of the need to execute a new one. It is also possible that a testator may not even have the capacity to make a new will after entering a predatory marriage and will be left without recourse. With an aging population, elder abuse, which often takes the form of financial abuse, is a very serious concern. Consequently, it may be time for Ontario to consider measures to protect elderly or vulnerable individuals against predatory marriages.
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According to the Ontario Human Rights Commission, approximately 60,000 of the 1.5 million older persons living in Ontario experience elder abuse. Of these reported cases, financial abuse is the most prevalent as it is the most common form of elder abuse in Canada.
As practitioners of elder law, we often see perpetrators who, sadly, are family members eager to get control of an aging parent’s finances. However, in other cases, the perpetrator is not a family member at all. Rather, he or she is an employee of a health care institution or a caregiver sent to provide in-home care.
Older persons in poor health are often isolated and vulnerable. This is particularly true with respect to those who live alone and are dependent on assistance from a health care worker, as well as those who reside in long term care facilities. Accordingly, many health care workers may find themselves in a position of power or influence over their charge. As a result, some Canadian provinces have enacted legislation that attempts to avoid the potential abuse of power that may emerge within these types of relationships.
For instance, in British Columbia, the Wills, Estates and Succession Act provides at section 52:
“In a proceeding, if a person claims that a will or any provision of it resulted from another person
(a) being in a position where the potential for dependence or domination of the will-maker was present, and (b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,
and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.”
Accordingly, in relationships of dependence, an automatic presumption of undue influence is established and the burden of proof is shifted onto the person upholding the will. As undue influence cases are notoriously difficult to prove, this legislation can facilitate the process.
In Quebec, the legislature has gone even further. Art. 761 of the Civil Code of Quebec provides:
“A legacy made to the owner, a director or an employee of a health or social services establishment who is neither the spouse nor a close relative of the testator is without effect if it was made while the testator was receiving care or services at the establishment. […]”
This restriction on testamentary freedom is viewed as a necessity given the need to protect vulnerable people.
In Ontario, there are no similar legislative provisions in the Succession Law Reform Act. However, the Courts have established the principle of suspicious circumstances which creates a presumption of undue influence when certain circumstances are present.
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The World Health Organization defines Elder Abuse as a single or repeated act, or lack of appropriate action, occurring in any relationship where there is an expectation of trust that causes harm or distress to an older person. According to the Ontario Network for the Prevention of Elder Abuse (“ONPEA”), the number of seniors over 65 in Ontario is expected to increase to almost 4.2 million by 2036, and tragically it is estimated that between 2% and 10% of older adults will experience some form of elder abuse each year.
There are generally considered to be five categories of elder abuse: physical abuse, sexual abuse, emotional or psychological abuse, financial abuse, and neglect.
Physical abuse can include physical force or violence and may result in physical discomfort, pain, or injury. This can include inappropriate use of drugs or restraints. Sexual abuse involves any sexual behaviour directed toward an older adult without their consent, and also includes contact with older adults who are incapable of consenting. Psychological or emotional abuse includes verbal or non-verbal acts that lessen a person’s sense of dignity, identity, or self-worth. This can be manifested in multiple ways, such as isolation, hurtful comments or lack of acknowledgement. Financial abuse is the most common form, and ONPEA defines it as “any improper conduct, done with or without the informed consent of the senior that results in a monetary or personal gain to the abuser and/or monetary or personal loss for the older adult”.
A recent article in the Psychiatric Times discussed why so many cases of elder abuse go unreported. The author suggests that this could be due to shame or humiliation, or the victim may refuse to acknowledge the fallacy of the scam that took advantage of them. An individual who has been the victim of elder abuse may not conceive of themselves as a victim, resulting in a failure to report abuse, or in denial if questioned. Additionally, an older adult who was rendered particularly vulnerable due to incapacity may be unaware of abuse or unable to report it.
The article also states that many actions that constitute abuse are often not recognized as such by the abused party: “The label ‘abuse’ tends to connote adversarial and overtly hostile action, but of the ‘weapons’ of abusers, affection is especially effective because it serves to make the abused person complicit in the acts—he or she really wants to comply with the abuser.“
There are many concerns surrounding elder abuse and elder care. It is important to be aware of such concerns and to stay informed in order to bring more attention to issues affecting older adults.
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Adult children of aging parents are often faced with important responsibilities. Ensuring that parents are adequately cared for is a task that many children lovingly undertake. As highlighted in this article in Forbes, key substitute decision planning ensures that the transition from independence to dependence, proceeds as smoothly as possible. Such steps should be taken immediately, and prior to the onset of dementia, or other incapacitating disorders, to ensure that one’s ability to provide instructions is unequivocal.
A power of attorney is a legal document that gives someone else the right to act on the grantor’s behalf. With the onset of incapacity, not only may the understanding of finances become increasingly difficult, but vulnerability to financial predators may increase. In fact, it is estimated that approximately 10% of the 1.5 million seniors in Ontario experience elder abuse. As such, allowing an incapacitated parent to maintain the authority to sign cheques and manage finances may be dangerous.
To preserve some degree of control, it is often the case that bank accounts are transferred into joint ownership between an adult child and their parent. This is a common practical step taken to ensure that the child who provides care to their parent has sufficient access to their parent’s funds to satisfy expenses arising. However, given the seminal decision in Pecore v. Pecore (SCC), at the time the bank account is transferred into joint ownership, careful notes must be taken to ensure that the evidence of testamentary intention regarding the account is clarified.
Meeting with an experienced lawyer that can explain the types of powers of attorneys, and the associated responsibilities, ensures the adult child has the appropriate powers to assist their parent. As well, the taking of detailed notes by a lawyer or financial institution is a prudent step to avoid possible estate disputes at a later date. While often we focus our efforts on estate planning, substitute decision planning is equally important.
Undue influence can be difficult to detect. This is because it often occurs behind closed doors. For a prudent solicitor seeking to make sure the Will they are drafting is an accurate reflection of the true intentions of the testator, ascertaining whether undue influence is being exerted can be a real challenge. There are red flags that may alert us to the possibility but, unfortunately, it is difficult to determine with any certainty whether a testator is being coerced.
The solicitor may ask pointed questions and insist on interviewing the testator alone but this will not necessarily guarantee an honest response. This is because those who are subject to undue influence are often older persons whose health is declining. They are frequently heavily dependent on their caregiver who may be intentionally isolating them from others. If this same caregiver has already gone so far as to arrange the meeting with the lawyer and instructed the testator on what the new Will should say, it is also likely that they will want to see a copy once the lawyer leaves.
The unduly influenced testator knows this and as a result, is unlikely to admit that they are being pressured. If they do, the lawyer will not draft the Will and they will be left to deal with the repercussions. This is a dilemma that arises in almost every abusive relationship. Fear of reprisal prevents the abused individual from speaking up.
At the Law Society of Upper Canada’s Practice Gems: The Administration of Estates, held last week, John Poyser presented on this exact issue. In order to safeguard against this problem, he suggests the interesting practice of implementing a confidential replacement Will.
The idea is that when a lawyer suspects the presence of undue influence and the usual preventative tactics fail, a second confidential Will is offered. The lawyer offers to draft and execute a Will according to the instructions the testator has been told to include. Then, another “confidential” Will or Codicil is drafted and executed which revokes or amends the former, as the case may be. The lawyer offers to securely and confidentially arrange to have the second Will held by a trusted friend until after the testator’s death. In this way, the testator can show the individual exerting pressure on them the first Will while ensuring that their true intentions are safely contained elsewhere.
This approach serves dual purposes. It ensures that anyone being unduly influenced has the opportunity to have their final wishes honoured without fear of consequences. It also works as a screening device for situations where undue influence may be present but not admitted to.
As Poyser points out, offering a confidential replacement Will typically results in one of two reactions. One, the testator is shocked that this is even being suggested and they stand by their position. This reaction can reassure the lawyer that undue influence is not an issue. Or, the testator is relieved to have been given this option.
This practice is unconventional and may contain flaws, the most obvious being that the average person being unduly influenced does not have many trusted friends to handle the storage and subsequent production of the confidential Will. However, undue influence is very closely tied to the growing problem of elder abuse and it is undoubtedly an interesting idea that is worthy of further discussion.
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Working in the field of estates, wills, and trusts law has provided me with the opportunity to interact with and provide services to elder people and their adult children. Given the advancement in modern medicine and the current trend towards healthy, active lifestyles, life expectancy is at an all-time high. Coupled with this is the fact that seniors generally have more savings, assets, and disposable income. Overall, this is a great thing, but does unfortunately carry with it certain undesirable effects.
One such effect was recently discussed in an article in the Financial Post which highlighted that financial abuse amongst seniors by scam artists is on the rise in both the United States and Canada.
Not only do seniors have more disposable income, seniors are considered good targets on the basis that they do not appreciate the value of their assets (such as property increasing in value), may be unwilling to take action against a scammer due to embarrassment, and the advancement in technology not only makes managing funds more difficult, but also makes it easier for scammers to appeal to seniors.
Signs that such an abuse may be occurring include: large withdrawals from bank accounts; withdrawals that seem out of the ordinary; or a lack of available funds to make essential payments. Amongst other avenues, two options are available to seniors to avoid falling into such a scam.
One low cost option available to seniors is to include someone they trust, such as a son or daughter, as a joint account holder to their bank accounts. This can easily be set up by visiting one’s local bank branch. Creating a joint account gives account holders certain powers including the power to review bank statements and certain control over the assets in the account. However, this is not a fix all solution as many banks allow one joint account holder to withdraw or transfer funds without the agreement of the other account holder.
Given this, a second, legally enforceable, option available to seniors is to appoint a power of attorney for property. Executing a power of attorney for property enables the designated attorney the power to make binding decisions on another’s behalf, minus the power to make a will. As the law imposes a fiduciary duty upon the attorney, it follows that the attorney must set aside their interests and work solely for the benefit of the appointor. There is also a duty that attorneys keep accounts of all transactions. Although setting up a power of attorney requires the use of a qualified lawyer, it does carry with it the enforceability and protection of the court.
On a different note, July 1, 2012 notes the coming into force of the revised pre-formatted, fillable estate forms under Rule 74 of the Rules of Civil Procedure. The new court forms can be downloaded at: http://www.ontariocourtforms.on.ca/english/civil/pre-formatted-fillable-estates-forms. Of the new forms, following the decision in Granovsky Estate v. Ontario, 1998 CanLII 14913 (ON SC), a case I blogged about on June 18, 2012, the courts have introduced a form which refers only to assets referred to in the Deceased’s Will. No doubt this will make things easier for those who have drafted multiple wills.
Ian Hull – Click here for more information on Ian Hull.