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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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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Earlier this week, I blogged about criminal offences involving the theft and destruction of testamentary documents. Case law dealing with these provisions of Canada’s Criminal Code is sparse.
The 2015 British Columbia Supreme Court decision in D’Angola v. British Columbia involved multiple allegations, including an accusation that a last will and testament had been fraudulently concealed contrary to section 340 of the Criminal Code. The matter featured a mandamus application by the daughter of the deceased, who sought her sister’s prosecution for this and various other alleged violations of the Criminal Code.
The deceased, the father of the sisters, had left a will dated May 6, 2003. The will named the applicant’s sister as estate trustee and otherwise treated both sisters equally. The applicant had apparently inquired of her sister whether the deceased had a will after their father died and did not receive a clear response. Approximately five months later, the named estate trustee contacted the applicant by email and informed her of the existence of their father’s will. Eventually, the applicant was informed, by counsel for the applicant’s sister, that the sister had been named as estate trustee, was in the process of administering the estate, and that the deceased’s property located in Italy had been transferred to the two sisters and their mother in accordance with Italian succession law. The applicant later became dissatisfied with the estate trustee’s administration of the estate, stating that her conduct in that regard had been both negligent and criminal.
In summarizing the Lower Court’s decision regarding the allegation of criminal concealment of the will, Justice V. Gray noted that “even if the Sister concealed the Late Father’s will, there [was] no evidence of a fraudulent purpose on the part of the Sister, and there was nothing for the Sister to gain by concealing it.” Justice Gray declined to exercise the discretion to order a reconsideration of the issues by the Court.
Although few other decisions consider allegations of criminal theft and/or concealment of wills, this decision by the British Columbia Supreme Court suggests that, with respect to allegations of concealment under section 340 of the Criminal Code, a fraudulent purpose will be a prerequisite. Further, the Court’s considerations may include whether any benefit has been received by the accused in concealing the testamentary instrument.
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