How can we protect our elderly friends and family members who may be vulnerable or susceptible to abuse or exploitation?
As lawyers, many of us have clients who are persons with a disability, illness, impaired cognition, or are vulnerable through circumstance. As estate litigators, these clients are often older adults who have not planned for their future or their plan has been unsuccessful for unforeseen reasons.
We are often asked by families, friends, even strangers, to remedy the wrongs of those who have been taken advantage of, defrauded, abused and neglected.
The first steps are education and planning.
According to Statistics Canada, by 2021 there will be 6.7 million seniors in Canada. Life expectancy is at an all-time high; in Canada, men can expect to live to 80 years of age, whereas women can expect to live to 83 years of age. With this longevity we have seen an upsurge in medical issues affecting cognition, such as Alzheimer’s, depression, schizophrenia and dementia in varying types and degrees. When a person can no longer manage their own personal care or property they become vulnerable and susceptible to abuse.
Abuse of the vulnerable
Predators exist and prey upon the vulnerable older adult. Older adults are susceptible to physical, emotional, sexual and financial abuse. The World Health Organization defines abuse of older adults as “a single or repeated act, or lack of appropriate action, occurring in any relationship where there is an expectation or obligation of trust which causes harm or distress to an older person.”
Older adults are vulnerable to predatory marriages, where an unscrupulous person takes advantage of the financial and legal benefits of marriage to defraud an older adult. It is not uncommon for predators to form bonds of trust for the purposes of personal profit. The predators may include people with fiduciary or trust obligations such as a lawyer or doctor, care-giver or health care provider, religious confidante, financial advisor or even an overly helpful friend or neighbour. The list can be limitless.
Consider the story of “George”, from a real Ontario court case. At the age of 88 George moved into a retirement home after his wife died. “Tammy”, a 31-year-old waitress at the retirement home, took George out one day and they were married.
Two days after the marriage, the couple attended a lawyer’s office and instructed a lawyer to draft a new will, leaving all of George’s property to his new wife.
The court found that George’s judgment was severely impaired and that there was persuasive medical evidence, including a capacity assessment, to conclude that the will was invalid for lack of testamentary capacity and undue influence by the 31-year-old wife.
However, the court was unable to set aside the marriage. Accordingly, since the marriage was valid and the will was invalid, George was intestate, meaning he had no will and Tammy, as his wife, still benefited financially under the law of intestate succession.
So, how do I protect myself and my family members?
Education
The first step is to educate. Once you know the risks you will be in a better place to protect yourself and your loved ones. You should discuss these risks with ageing relatives and advise them to give careful consideration to documenting who will look after their affairs in the event of future disability, illness, or incapacity. Some of the questions to ask are:
- Do you want to stay in your own home, with family or a caregiver? Or would you prefer to live in a residence or long-term care facility with professional medical staff?
- Who will pay for your needs and how?
- What activities do you want to continue enjoying?
- What hobbies and what kind of social environment support your values?
The Power of Attorney Document
The power of attorney document (POA) is one way to protect a person’s health and financial interests.
The POA can be effective in minimizing family conflict during a person’s life time and prevents expensive guardianship litigation. Sometimes, however, POAs can cause a great deal of family disharmony. We cannot overstate the importance of choosing attorneys wisely and advising your family of your wishes.
In Ontario, there are three types of POAs:
- The general form of a POA for property grants a specific or limited authority or a general authority.
- The Continuing Power of Attorney for Property (CPOAP) grants a continuing authority that survives subsequent incapacity. To have a valid CPOAP, the attorney needs to be appointed before the grantor becomes incapable, and is valid as a continuing authority for property management if the document states that it is a continuing POA, or the document expresses the intention that the authority given may be exercised during the grantor’s subsequent incapacity to manage property. A person is considered incapable of managing their property if they are unable to understand information that is relevant to making a decision in the management of their own property or unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.
- The Power of Attorney for Personal Care (POAPC) enables an individual grantor, when capable, the opportunity to appoint a person or persons to make decisions on their behalf in the event that they are incapable of managing personal care and treatment decisions. An individual is considered incapable of managing their personal care if they are unable to understand information or appreciate the reasonably foreseeable consequences of a decision or lack thereof, relevant to their health, nutrition, shelter, clothing, hygiene, or safety.
How do I know if someone is incapable?
Capacity itself is a complex concept. There is no simple legal or medical definition of “capacity”. In Ontario, all adults are presumed capable of making their own decisions. That presumption stands unless and until the presumption of capacity is legally challenged and rebutted.
However it is important to note that “capacity” is decision, time and situation specific. Legal capacity can fluctuate over time and depending on the decision being made. Although each task has its own specific assessment criteria, capacity to make a decision is generally demonstrated by a person’s ability to understand all the information relevant to the decision as well as the ability to appreciate the likely consequences of the decision.
The problems we see regularly are those that arise due to lack of planning, sudden illness, unexpected incapacity, and tragedy. Hearing the stories of abuse precipitated by individuals in a position of trust to a vulnerable person reminds us of the importance of education, careful planning and the need to be attuned to the possibility of abuse and undue influence.
About the Authors
Kimberly Whaley is the founder and principal of Whaley Estates Litigation.
Erin Cowling is an associate with Whaley Estates Litigation.