Challenges and Strategies in Litigating Elder Financial Abuse Cases

As the Canadian population continues to age, elder financial abuse has become a growing concern. When representing the interests of elderly clients, lawyers have a duty to be cognizant of the unique challenges that may arise and must implement appropriate strategies to combat them. In this article we will examine common issues to consider when dealing with elderly financial abuse cases and introduce strategies to overcome them.

What is Financial Abuse? 

Financial abuse is the unauthorized control or use of another person’s money or property. Most people believe that financial abuse means an overt use of another person‘s assets for personal gain. While some instances of financial abuse are overt, others are much more difficult to distinguish. Financial abusers may gain access to an elderly person’s property by going door-to-door to retrieve their personal information or they may defraud them by phishing for their information online or by coaxing information out of them over the phone. However, financial abuse often also includes pressuring or coercing a person into allowing access to their assets, threatening them or refusing to give them access to basic necessities unless they allow access. According to the Canadian Department of Justice, financial abuse is the most commonly reported type of abuse against elderly people. Older adults can often fall victim to direct financial abuse, through theft or fraud, but are more often covertly influenced into allowing others access to their money or property. Lawyers should be vigilant to the signs of elder financial abuse. Some of the common signs include when a client is:

1. Having  trouble giving a clear explanation of what their assets are;
2. Missing valuables;
3. Unable to produce bank statements or is confused as to where their money is being held; and/or
4. Removing large amounts of money from their bank account, missing money from their wallet, or cheques are being written without their knowledge and/or consent.

Nonetheless, the signs of financial elder abuse may not always be clear, and the above list is not exhaustive.

It can be difficult to balance the presumption of capacity with suspicions of vulnerability in our older adult clients. Lawyers should also be aware of the risk of contributing to ageism by assuming that elder abuse is taking place without taking time to assess the facts of each individual situation. Age alone does not imply vulnerability; therefore, lawyers should assess whether an elderly person is being exploited or still capable of managing their finances independently. For more information on elder abuse, lawyers can read more at The Alzheimer’s Society of Toronto.