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:
- Having trouble giving a clear explanation of what their assets are;
- Missing valuables;
- Unable to produce bank statements or is confused as to where their money is being held; and/or
- 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.
Common Financial Abuse Cases
Elder Financial Abuse Cases come in many different forms due to the diverse nature of the overall issue. Common financial abuse cases may deal with the abuse of Power of Attorney documents, property disputes or other disputes which may stem from the abuse of an elderly person’s trust and/or vulnerability.
Continuing Power of Attorney documents often contribute to the financial abuse of elderly people. An elderly person may feel it necessary to execute a Continuing Power of Attorney document to ensure that someone is prepared to handle their financial affairs if they become mentally or physically incapable or they may be coerced into signing one. Since a Continuing Power of Attorney for Property takes effect as soon as it is signed and witnessed, an Attorney for Property (CPOAP) there are no real proactive safeguards to prevent the Attorney from helping themselves to the elderly person’s money and property. Reactionary resolutions may be found in the Substitute Decisions Act but some of those solutions will need to involve litigation to be of use.
Property disputes between parents and adult children are also common forms of elder financial abuse. In some instances, an elderly parent may allow an adult child to live with them, adding the adult child’s name to the title of the property to give them partial ownership in the event of the parent’s death. Disputes can concern ownership of the property, especially if the adult child contributes to the maintenance of the household. Lawyers need to be especially careful when our older adult clients plan to gift property to their children. It is important to advise our clients of all the risks and suggest ways to safeguard themselves should a child take advantage of them or should a dispute arise.
Some disputes don't come from the execution of a legal document at all. In some instances, a relative or an elderly person’s acquaintance, may convince or coerce them into sharing their property with them. In some cases, they may pressure the elderly person by threatening to halt any personal assistance to them until they get what they are asking for. These types of cases are much harder to identify as many older adults are reluctant to report their abuser due to feelings of shame or powerlessness in these circumstances. It is important to take steps to get to know our clients so we can understand their motivations for taking certain actions.
Challenges in defending against elder financial abuse cases
There is a myriad of challenges that can arise when lawyers become tasked with an elder financial abuse case. One of the main challenges is that the criminal prosecution of financial abuse cases is quite difficult. It can be an uphill battle to convince police enforcement to investigate because, on its face, most elder financial abuse cases are not clear cut. An elderly person may be reluctant to give evidence against an abuser who is a family member or a close friend. In some cases, this is due to their fear of the consequences. In other cases, there may be a shortage of evidence to prove that financial transactions were not carried out by the elderly person themselves. Sometimes, law enforcement may believe that the crimes are better tried in civil court, where an elderly person can seek damages, or they may believe that financial elder abuse matters are outside of their jurisdiction. While the civil court can deal with these types of disputes, these are often very costly to pursue. Even in instances where law officials feel that they can intervene to criminally charge an alleged perpetrator of elder abuse, these trials may take years and often put a toll on the elderly person and can put them under a deal of emotional and psychological stress, in addition to the effects of abuse.
Strategies in defending against elder financial abuse cases
As mentioned, there are a great deal of seemingly insurmountable challenges when dealing with elder financial abuse cases. Nonetheless, lawyers can employ strategies to overcome them. Ideally, lawyers should watch for signs of elder abuse or the conditions under which such abuse may be allowed to begin or worsen ahead of time and ensure that they are taking instructions directly from their client. Lawyers must also take precautions to ensure that their clients are not being influenced or coerced by another party and should address capacity concerns before taking instructions. Implementing a capacity checklist can simplify this process. Keeping diligent notes when meeting with a client with capacity issues is also a helpful way for lawyers to better document concerns and keep track of instructions. Capacity is on a spectrum, and the threshold differs depending on the task. Lawyers should apply the correct analysis to determine if their client has the capacity for the task at hand. For example, the threshold for determining whether a person has the capacity for marriage differs from that of the threshold for revoking or executing a Power of Attorney document.
When litigation commences in an elder financial abuse case, there are several legislative tools that can be used to address these cases. Section 32 of the Family Law Act (Ontario) provides that a duty of care exists and is owed by adult children to their elderly parents. This section, although scarcely used in Ontario case law, is an avenue that could be employed to request that an adult child assist their elderly parent financially. This may be an avenue for litigators to argue that a responsibility exists for adult children to support their parents financially, preventing them from legally depleting their assets. It should be noted that there is no duty of care when a parent is living independently - see legal memo : Will a Court Find a Duty of Care Owing Between a Child and an Elderly Parent? The Criminal Code of Canada is another legislative tool to combat elder abuse. It may be helpful in some cases to criminally prosecute an elder abuser. However, as mentioned, this route presents some challenges. Alternatively, bringing a civil claim demanding an accounting is a way to shed light on perceived fraudulent transactions of a Power of Attorney and seek damages. However, these proceedings can take time and expenses, which should be considered and discussed with the client.
Conclusion
In conclusion, there are several challenges that may rear their heads when trying cases dealing with elder financial abuse. However, they can be mitigated by the use of legal strategies, which are mentioned above. Most importantly, cases of elder financial abuse can sometimes be thwarted at the source when lawyers are vigilant, well informed of elder abuse prevention methodologies and keeping the wellbeing of elderly clients in mind.
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