ARELLO 2012Conference

Financial Elder Abuse

Demographic Snapshot By 2041, older adults will make

up 25 % of the Canadian population

Multi-cultural seniors significant cohort

Many Canadian seniors like to winter in Florida

Financial abuse of seniors is becoming a widely reported concern

Many seniors are attracted in particular to the Condominiums life style

…and often children of these same seniors express dismay that their parents are spending “their” money (inheritance) south of the border.

…and why should you care?

Brief Overview of Canadian System

Inherited English Common LawParliamentary Democracy10 provinces, 3 territories (presently)Provincial and Federal laws

(e.g. Guardianship is provincial, Criminal Code is Federal and thus applicable across Canada)

Each provincial / territorial system is different Non-uniformity (sound familiar?)

Some law reform systems for harmonization

1. Elder Abuse and NeglectOnly half of Canadian

jurisdictions have some form of vulnerable adult-specific legislation

No analogous ADA or OAA or Elder Justice Act in Canada

Elder Abuse:Provincial versus Federal Jurisdictions

ProvincialHealthGuardianship

FederalCriminalConstitutional

Rights(e.g. Liberty)

Deafening Silence Re: Criminal Elder Abuse Discourse in Canada “Despite provisions which would allow for prosecution, little

use has been made of the existing Canadian criminal code [sic] to address those suffering mistreatment as victims of illegal acts relating to financial abuse or fraud of physical or sexual assault. This appears to follow strongly held beliefs among older people that abuse should be contained within the family…as well, under-resourced police departments have been slow to recognize the need to develop initiatives for dealing with seniors”.[1]

[1] Harbison, Joan, The Changing Career of ‘Elder Abuse and Neglect’ as a Social Problem in Canada: Learning from Feminist Frameworks? Journal of Elder Abuse and Neglect, 11 (4), p. 59 at 66.

State of the Law in Canada re: Criminal Elder Abuse

No specific criminal code provisions

Police and Prosecutor very reluctant

s. 331 “Theft by person holding power of attorney” or s.380 – “Fraud”

s. 718.2 “Other sentencing principles”

s. 215 “Duty of persons to provide the necessaries

Elder Abuse and Neglect Responses in Canada has challenges-

Disconnect – law/health/police

Lack of public understanding of systems

Balance of individual risk -protectionism especially in terms of self-neglect

Evolution of “co-decision-making” not well-understood

Red Flags for Elder Abuse• Inquiry or appointment with lawyer,

real estate agent, financial planner made by an adult child, other relative, or friend who insists that:– He or she will accompany the client

to the appointment– AND be present for the entire

interview, consulation or appointment

Red FlagThe person accompanying the senior

(elderly) client attempts to answer questions before the client has an opportunity to respond

So you want to sell your house?And the daughter responds “yes my

mother wants to do that as soon as possible.”

Red FlagThe individual looks toward the person

accompanying him or her before responding

You ask: What closing date are you thinking of?The elderly client is thinking she does not want to leave her home and the son is thinking the money will help him with his newest get rich venture

Red Flag• The person accompanying the client

attempts to instruct you on what you should do or tries to provide instructions over the telephone

–Lawyers “frequently” hear: “My mother wants to make a Power of Attorney appointing me as her attorney”

Red FlagYou the agent are then requested to

draft an Agreement of Purchase & Sale for the attorney to pick up because it is not convenient for the elderly seller (vendor) to attend your office

…it may come back with the signature of the attorney? …do you ask to see the POA or do you leave that up to the lawyer?

We all need to ask ourselves

Are we part of the problem or the solution?

Best Practices Confirm who is your client-who are you representing?Confirm IdentificationAsk the Senior questions directlyListen –observe-take noteIf a Power of Attorney is being used ask to see a

certified copy and have a copy for your fileDueling powers of attorney cases-

AND know the law in the jurisdiction in which work What protections are in place for seniors.

What you can doSuggest

Independent legal adviceNot just does each side have their own

lawyer(attorney) but does the elderly senior have independent legal or an opportunity to consult with independent counsel?

Questions?