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 Law Parliamentary Democracy 10 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 Neglect Only 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 Provincial Health Guardianship Federal Criminal Constitutional 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] [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 “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 Flag The 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 Flag The 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 Flag You 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 Identification Ask the Senior questions directly Listen –observe-take note If a Power of Attorney is being used ask to see a certified copy and have a copy for your file Dueling powers of attorney cases- AND know the law in the jurisdiction in which work What protections are in place for seniors.

What you can do Suggest Independent legal advice Not 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?