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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Estate planning can be tricky enough without some of the other issues often associated with aging – the need for care, moving homes, declining mental capacity, or the death of a spouse. Elder mediation – a specialized form of mediation that goes beyond mediation training and experience to include issues specifically related to the elderly – now has a presence in Canada after gaining a strong foothold in the United States.
The elder mediation specialty recognizes that conflicts often come to the surface as parents age and key decisions – such as those relating to ongoing health care, estate planning, and the upkeep and use of assets like cottages and vacation homes – need to be made.
How would you and your family cope when an elder member of your family enters a transition stage? Two U.S. elder mediators have identified four categories of families in how they handle a major elder transition:
- Graceful transitions – the family successfully manages old age and its transitions through targeted planning and effective communication, along with good legal and financial advice. Even as elders experience their inevitable physical decline, family members manage this process with dignity and respect.
- Successful struggles – the family has one or two major issues to work through but manages to come to a positive outcome with the support of friends, family and advisors.
- Quietly bruised – the family may be unable to move forward with important decisions and are living with situations that leave an aging parent in peril and increase emotional, financial and safety risks. There is often a sense of discomfort with choices made, and there may be disagreements festering under the surface about care giving, housing or inheritance decisions.
- Litigious – things have gone from bad to worse, and there is either the threat of litigation or actual litigation required to get decisions made. Wounds abound, and relationships are often destroyed forever between some family members.
You can find the full article here: http://www.mediationinstitute.net/training/wp-content/uploads/2011/12/MediationinEstatePlanningandElderCare.pdf
Elder mediation isn’t required in most family situations, but if either of the last two categories of family seem familiar, it’s a process well worth considering. Family Mediation Canada has more information on elder mediation in this country: http://www.fmc.ca/elder-mediation
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Elderly persons are unquestionably at greater risk of abuse than the general public. The five general categories of abuse are physical, sexual, psychological or emotional, financial, and neglect. No doubt such abuse is on the rise, and is an issue that is generating attention worldwide.
The Australian Law Reform Commission (ALRC) was reported to have taken a substantial step forward through its recent release of a lengthy report addressing abuse of the elderly.
The report includes many recommendations for change, with a focus on the betterment of care provided to those living in care facilities, including improving (i) the reporting and monitoring of abuse, with the process overseen by an independent body, and (ii) quality of care and staffing.
The authors of the article linked to this blog cite that little is known in Australia about the overall number and severity of abuse, with sexual assault being the least acknowledged, detected and reported. They applaud the ALRC for recommending a national study to explore how common elder abuse is.
Their chief critique of the report, however, is that although it addresses the legal aspects of elder abuse, the impact on health and well-being of the victims is ignored. Moreover, absent is any comment on whether inappropriate health care is a form of abuse (e.g. using resuscitation against someone’s wishes).
The authors highlight the primary challenge to prevention, which is to equip the legal, healthcare and elder care sectors to better screen, identify and intervene. As we face similar difficulties, I expect that the initiatives and recommendations made by the ALRC would be well-received in Canada as well.
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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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Testamentary capacity is most commonly an issue when a testator prepares a new will later in life, against a form of progressive dementia, whether it became apparent before or after the creation of the will.
The Main Question to be Considered
In cases regarding progressive dementia, the question is whether the mental deterioration has deprived the testator of his or her testamentary capacity. If the testator has been deprived of their capacity, it is likely (but by no means certain) that the will they signed will be invalid. Pursuant to the case of Johnson v Huchkewich (2010 ONSC 6002), a diagnosis of dementia is not tantamount to a lack of testamentary capacity.
Requirements for Capacity
As established in Banks v Goodfellow [(1870), [1861-73] All ER Rep 47], “the standard of capacity in cases of impaired mental power, is…the capacity on the part of the testator to comprehend the extent of the property to be disposed of, and the nature of the claims of those he is excluding.” In applying the test for testamentary capacity, it is important to ensure that the testator was capable of appreciating the terms of the will, but also the circumstances surrounding the making of the will. The testator must be able to recall and comprehend circumstances beyond a range of familiar topics. As defined in Leger v Poirier (1944 CarswellNB 11), the individual must be able to have a “disposing mind and memory”, which is able to “comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like.”
Therefore, in a case where an individual has progressive dementia and is attempting to make a testamentary document, the lawyer has an obligation to ascertain if the individual can appreciate the circumstances as a whole. The ability for the testator to rationally respond to questions is not enough to determine that the individual has full capacity.
Furthermore, it bears repeating that a testator who is incapable to manage his or her affairs due to progressive dementia, does not necessarily lack testamentary capacity. As established in the case of Cranford’s Will, Re, (1978 CarswellNfld 23), “in determining the testamentary capacity of an aged person it is necessary to be careful not to substitute suspicion for proof so as to render it impossible for old people to make wills…”
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The stated goal of this year’s conference, which was held in Toronto, was to “promote contribution and access to a knowledge base regarding legal issues affecting older adults, with a view to reducing vulnerability, social isolation, and abuse” with the overarching theme of the conference being to develop an anti-ageist approach to the law.
The speakers touched on a wide range of topics, including aging, access to justice, the role of law schools in responding to Canada’s aging demographic, the challenges and opportunities of a shift to a rights-based approach to elder law and approaches to law reform that include older adults.
In light of the stated goal, several speakers opined that there should be direct consultation with stakeholders. Senior’s Activist, Bea Levis, for example, stressed that laws, policies and programs must be informed by the lived experiences of older adults if we wish them to be both fair and effective. I couldn’t agree more.
The Canadian Conference on Elder Law is one of the many ways that individuals from diverse backgrounds and professions are able to increase awareness regarding the issues facing older adults and develop strategies to advance the interests of this often vulnerable population.
If you are concerned about elder rights, there are several things you can do, one being to sign up for next year’s conference. I hope to see you there.
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Kathryn Pilkington – Click here for more information on Kathryn Pilkington.
In an aging society, our elderly can easily fall prey to predators looking to exploit them. Elder abuse can take many different forms: physical, psychological or financial abuse, or simply neglect.
I read an article yesterday about Huguette Clark, the 104 year old heiress whose wealth is estimated at half a billion dollars. During her lifetime, Clark made generous gifts towards those who cared for her. For instance, it is reported that Clark gifted $10 million dollars to her social secretary.
It is reported that Clark’s wealth is being managed by her lawyer and her accountant.
A former paralegal who worked for Clark’s attorney, has now blown the whistle on what she alleges is improper behavior by Clark’s attorney and accountant. According to reports, it is alleged that they “drafted a will that would have left money to [one of them], trying repeatedly to persuade her to sign it — then joked about their client and cursed her behind her back when she would not sign the will.” It is also reported that her lawyer allegedly solicited from Clark $1.5 million dollars to build a security system for a community where his daughters and their families live. In addition he allegedly sold a Stradivarius violin for $6 million dollars and a Renoir painting for $23.5 million.
A criminal investigation has now been launched by the Manhattan district attorney, who has the Elder Abuse Unit of the New York County District Attorney’s Office looking into the handling of Clark’s finances.
It bears repeating that the complaints at this stage are unproven allegations. Nonetheless, the mere thought that this could happen provides us with a dreadful reminder of what the elderly face in our society today.
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Rick Bickhram – Click here for more information on Rick Bickhram.
It should come as no surprise that we live in an aging society. As our society continues to grow old, family members should be concerned about their loved ones who live with disabilities.
I recently read an article (found here) that describes the obstacles that our law enforcement and emergency professionals are confronted with when responding to an emergency involving a disabled or elderly person.
The article describes stories where law enforcement and emergency professionals were not aware or misunderstood the unique limitations of people with disabilities and were unable to offer the best assistance during their need for help. For instance, the article describes “a California man who, while waiting for his bus home from work, was beaten by officers who mistook his folded white cane for a martial arts weapon and a Florida man dumped from his wheelchair by a deputy who didn’t believe he was paralyzed.”
The focus of this article should be for family members to be prepared for emergencies. Some helpful tips to becoming prepared are:
1. Instructing family members with disabilities to contact family members right after emergency professionals;
2. Keeping relevant health records in an easily accessible location and instructing family members to give the materials to emergency professionals; and
3. Enlisting your neighbours and nearby friends to offer assistance in emergency situations.
There is no full-proof method of preventing some of the tragedies that the article describes but our family members are the most important people in our lives and we can protect them from traumatic and life-threatening events through careful planning.
Thank you for reading.
Rick Bickhram – Click here for more information on Rick Bickhram.
They bound me with masking tape until I looked like a mummy. It took them
quite a while because they ran out of breath. When they loaded me into the
car I thought I was a dead man.
– James Arnburn, financial adviser and alleged kidnapping victim
Having lost their savings to Florida’s boom-and-bust property market, and apparently sporting one heckuva grudge, Roland and Willy, ages 74 and 60, respectively, reportedly clobbered their financial adviser, James Arnburn, with a walker, bound him with duct tape, then took him for a long drive in the trunk of their Audi. After arriving at Roland’s home a mere 300 miles away, they were joined by retired doctors Gerhard and Iris, ages 63 and 66. The foursome proceeded to hold Mr. Arnburn captive in an unheated cellar for four days, during which time they allegedly burned him with cigarettes, beat him with a chair leg, and even threatened him with the Russian mafia. Armed commandos were eventually scrambled, the house was stormed and Mr. Arnburn was rescued from his ordeal.
According to the Daily Telegraph, this is only the latest example of what is being referred to as ‘silver crime’ – ‘the violent backlash of pensioners who feel cheated by the world.’ To wit, the Times Online reported that over the course of nine years, a group of pensioners dubbed the Grandpa Gang and ‘armed’ with carrots in their pockets, robbed 14 banks across Germany in an attempt to boost their retirement savings and alleviate their disgust over the size of bankers’ bonuses. The trio won’t be back at the bridge table for about ten years, possibly less for good behaviour.
Jennifer Hartman, Guest Blogger
The growth in Canada’s aging population has led to increased awareness of the special needs of seniors and the impact of the law on them. Our blogs have often dealt with issues that particularly affect the elderly, such as power of attorney abuse. In a previous blog, I noted the rise of a new practice specialty, elder law, to deal with the multi-faceted legal needs of the elderly.
The Advocacy Centre for the Elderly (ACE) is a longstanding community legal clinic that has been at the forefront of elder law since 1984. ACE specializes in providing legal services to low income seniors in Ontario and promoting access to justice for the elderly. Through its work, ACE has developed expertise in issues affecting older persons, such as elder abuse and exploitation, mental capacity and consent, patients’ rights in hospitals and other institutions, and substitute decision making.
ACE is currently working with the Law Commission of Ontario (LCO) to research the best ways to enforce the rights of older adults residing in institutional settings, such as hospitals, long-term care homes and retirement homes. Older adults, including residents in institutional settings, are too often denied access to justice due to lack of awareness of legal rights, discrimination based on age, and financial and physical obstacles in trying to access the legal system. ACE’s goal is to develop an ‘access to justice model’ that will promote the autonomy and dignity of older adults residing in institutions, and ensure that their complaints are heard and successfully resolved. ACE’s work is part of a broader multi-year project by the LCO to develop a new framework to analyze and understand the impact of law on older persons.
Have a great day!
Bianca La Neve