Whaley Estate Litigation

Elder Law and Abuse

Changing demographics render the law as it affects older individuals increasingly important. Older individuals can also be particularly prone to legal abuses.

Elder abuse, or the abuse of older adults, is often defined as any act or omission that harms a senior or jeopardizes his or her health or welfare. 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 of trust that causes harm or distress to an older person".

Elder abuse can take place in the home, in other residential settings, or in the community. Elder abuse can be defined in different ways and can cover an infinite number of situations. Any act that harms or threatens to harm the health or welfare of an elderly person is abuse, which can take on many forms, physical, psychological and financial. Elder abuse is a form of neglect. It is estimated that between four and ten per cent of Ontario's seniors experience some type of abuse.

Elder law and abuse involves many far reaching practice areas and not just Estates Trusts and Capacity litigation. Lawyers work with the elderly in many practice areas and bring expertise accordingly in the appropriate area of law.

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The central characteristic of any form of elder abuse is the existence of a vulnerability particular to the age or the effects of aging on a person. It is this vulnerability that makes abuse possible and against which seniors require protection. Elder abuse is not new. However, as the world faces an increasingly aging population, abuse against the elderly is a specifically vulnerable group as receiving greater address.

Legislation designed to protect the elderly, among others, is applied and helps in elder abuse reduction. The Trustee Act, the Substitute Decisions Act 1992, the Health Care Consent Act 1996, and other legislation dealing with the person apply to elders. Vulnerability can exist regardless of a legal fiduciary beneficiary relationship. It is the vulnerability that can make the elderly subject to abuse from persons who they do not even know. There are common-law cases of elder abuse, cases concerning lack of testamentary capacity, financial abuse. As solicitors we try to prevent abuse from occasioning by assisting our clients in the planning stages. Either through no planning, inappropriate planning, or the change in circumstances, abuse ensues, and litigation is the inevitable consequence.

The law in Canada with respect to elder abuse is largely focused on remedies. There is a shift however, because of the increasing recognition of the magnitude of the abuse, towards more of a preventative or vigilant approach.

Legal abuse can take many forms where the abuse of trust involves a legal instrument and construct. Often abuses involve an abuse of power granted under a Power of Attorney (POA) for property, the exertion of undue influence on an elderly person when he or she is drafting his or her Will, and so on.

Disputes seen in our practice concerning Attorneys for Personal Care and Property include the following:

  1. Disputes and accounting discrepancies concerning the specific dates upon which the POA document became effective; the date of incapacity of the grantor; and the extent of the Attorney's involvement;
  2. Whether the Attorney has made unauthorized, questionable or even speculative investment decisions, or decisions or decisions lacking in diversity;
  3. Whether the Attorney has taken into consideration the tax effects of the Attorney's action or inaction;
  4. Whether the Attorney has acted in a timely fashion in attending to financial matters which may have contributed to unnecessary expenses, or damages from inaction;
  5. Whether the Attorney has sought professional advice where deemed necessary or appropriate;
  6. The Attorney's treatment of and dealings under jointly held assets or accounts;
  7. Attorney disputes between siblings regarding the capacity\incapacity, action\inactions, of a parent\grantor;
  8. Attorney disputes among step-children, children of prior relationships, subsequent spouse\partner;
  9. Attorney misappropriation of grantor's assets;
  10. Attorneys acting ultra vires their power to effect testamentary acts;
  11. Incapacity of a grantor to grant a POA;
  12. POA obtained from incapable or vulnerable grantor by an individual with improper motives, seeking personal gain, as a result of the exerting of undue influences, or suspicious circumstances;
  13. Fraudulently obtained Powers of Attorney;
  14. Forged Power of Attorney documents;
  15. Powers of Attorney used to perpetrate a fraud;
  16. Disputes where one or several Attorneys have acted without the knowledge or approval of the others either under a Joint, or Joint and Several, POA.

Specialized legal expertise can assist in addressing these concerns.

For assistance with collection agencies, under the Collection Agencies Act and Regulations, contact the Ministry of Consumer Services, Consumer Protection Branch, 5775 Yonge Street, Ste 1500, Toronto, Ontario, M7A 2E5 and email: consumer@ontario.ca.

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This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation.