Silent Epidemic: The Alarming Rise of Elder Abuse and Urgent Need for Estate Law Reform

by Sara Haider, winner of the 2023 Elder Law Section Student Essay Contest

This paper aims to highlight the issue of elder abuse and its impact on the financial safety of elders, specifically in the areas of power of attorneys, intervivos gifts, and will planning. It is imperative to better protect elders from financial abuse, and this paper will explore various ways to achieve that.

The paper is structured into five sections. Firstly, it will provide an introduction to elder abuse and the reasons why it is a pressing issue. The next section will examine the role of lawyers in detecting elder abuse and the appropriate steps to take if suspicious circumstances arise. The advantages and disadvantages of using power of attorney as a solution will be evaluated in the following section. The paper will then shift its focus to will planning and intervivos gifts, examining issues such as capacity and undue influence. Finally, the last section will analyze current case law, identify barriers to justice for elders, and suggest possible solutions. The paper will also discuss limited legal avenues available to elders for self-protection and how complex state litigation can be avoided.

What is Elder Abuse?

To understand the purpose of this paper and the need for change, it is important to identify the scope of the issue and the individuals or groups who are affected by it. This can help provide context and a better understanding of the problem at hand.

Although a universal definition of the term elder abuse does not exist, Health Canada has defined elder abuse as “the physical, psychosocial or financial mistreatment of a senior”.¹ Elder abuse is an issue that can be divided into three broad categories. There is physical abuse such as causing pain, injury, or death.² This type of abuse is more easily detectible as there are typically physical symptoms associated with it. The second is psychosocial abuse which includes verbal abuse, the social isolation, the failure to provide affection, and the denial of the opportunity to make or take part in decisions concerning one’s own life.³

While various forms of elder abuse are common, the most daunting challenge is posed by financial abuse, which constitutes the fifth form of elder abuse. Financial abuse is the most common abuse (62.5%), with verbal and physical abuse second most common (35% and 12.5% respectively) followed by neglect (10%).⁴ Not only is this the most common type of abuse it is also the aspect of abuse that the law has attempted to monitor and protect with tools such as power of attorneys, capacity tests, OPGT etc. These issues have also caused a large amount of estate litigation and that is why this paper will largely focus on financial abuse with elders.

What exactly is financial abuse? In this context we are discussing the illegal or unauthorized use of someone else’s money or property. This will also include pressuring someone for money or property.⁵ There are obvious forms of financial abuse such as theft and fraud. A simple example of this in our context is someone misusing a power of attorney to take money from their bank account for themselves. Sometimes it is hard to detect that a transaction is financial abuse. For example, as an elder you could be signing paperwork that you do not understand that could be changing financial decisions. This can be seen in cases where elders are coerced into making or changing their wills or power of attorneys.

Elder abuse is already impacting thousands of seniors and is expected to continue to grow. The Ontario Human Rights Commission reports that approximately 4% or 60,000 of elders experience some form of elder abuse.⁶ This is important to discuss because even this number is likely underreported. Many elder persons are not willing to report elder abuse because they feel they would have to report someone they love and are dependent on. Typically, the abuser is someone with whom the elder has a trusting relationship with. From a lawyer’s perspective, elder law is an immerging field of law in 2023 and it will keep being in demand as more adults are reaching the age of retirement. This is especially important as we are seeing baby boomers reach the ages of 60-70 years old. According to World Health Organization, the global population of people aged 60 years and older will more than double, from 900 million in 2015 to about 2 billion in 2050.⁷ It is concerning that the legal system is currently struggling to handle the rates of elder abuse that we are seeing. If this issue is not addressed, it is likely that the problem will only get worse as the elderly population continues to grow.

COVID has recently made it more critical for elders worsening their vulnerability and financial situations. The global pandemic impacts on the elder population have not only been physical but likely have led to a number of long-term mental health and financial consequences. A US study, for instance, suggests that abuse rates in the community may have increased by as much as 84%.⁸ One theory to explain this would be the increased use of technology for legal documents and the increased potential for fraud/not understanding what they are signing with that. Thus, not only is it important to recognize the current issues within the legal system, but to continue to research and educate lawyers as legal technology develops.

Lawyers and Detecting Abuse

The first step for professionals such as lawyers to help elders is to know detect when the abuse is taking place. Some common things to look for are “changes in living arrangements, which often involve a family member or friend moving in with or without consent, an unexplainable, sudden inability to pay for bills and necessities, changes in banking patterns, including withdrawal of money from accounts, or a sudden uptick in expenses, The disappearance of possessions, or a changes in spending or quality of life, changes in power of attorney documents and lack of knowledge about the financial situation.”⁹ These are some generic tips for lawyers to educate loved ones and elders on the signs to be aware of.

Specifically, lawyers should take precautions of undue influence. We can look to other jurisdictions research on this matter for guidance. In British Columbia, the Canadian Centre for Elder Law produced a practical Guide to Elder Abuse and Neglect Law in Canada.¹⁰ In this document, there was an outline of tips for lawyers to consider when dealing with elders. Few examples include to avoid ageism, recognize the value of independence and autonomy and, know that abuse and neglect can happen anywhere and by anyone.¹¹ Avoiding ageism almost goes hand in hand with this tip, as it is key for lawyers to remember to avoid stereotypes of elders. Assuming they are unable make decisions for themselves solely because of age, or telling them how they ought to distribute their assets. The third tip mentioned, which is important to remember is that it is not always a home care worker taking advantage, it is often someone in the elder’s life such as their own daughter/son.

It is important for lawyers to know how to test issues such as capacity, undue influence, and vulnerability. The lawyer’s role in this is to make sure their clients know what they are signing up for. As a lawyer when you meet a client one of rules of professional conduct indicate that you must always act as an advocate. Rule 5.1-1 states that “when acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect”.¹² This section applies here because in estates law and elder law you need to be aware of your client’s position and what they truly want. Without knowledge of what the elder is asking and whether someone is influencing this decision a lawyer cannot be a true advocate.

We can also look to guidance from case law as to why this issue is significant. In the Supreme Court case of Banton v Banton, Cullity J. “A very high degree of professionalism may be required in borderline cases where it is possible that the client’s wishes may be in conflict with his or her best interests and counsel’s duty to the Court.”¹³ This quote shows us that there is an expectation lawyers need to do more than simply follow directions word for word.

A duty most lawyers know is that they need to question and have the duty to see if the testator is aware of their assets and what they are signing. One step further is that lawyers need to also investigate if they find surrounding circumstances seemingly suspicious. This is seen in the case of Walman v Walman Estate, where the judge found that the lawyer did not conduct the client interview in sufficient depth.¹⁴ The facts of the case show that the testator made three wills, in 2003, 2005, and 2007, as well as several dispositions of capital property that benefitted his second wife.¹⁵ The testator had three sons from his previous marriage.¹⁶ The 2007 will and property transfers left most of his estate to his second wife, yet (perhaps strategically) did not completely kick out the sons from the will.¹⁷ The lawyer on the surface seemed to do all the “right” things as Justice Corbett notes for determining testamentary capacity; client was interviewed alone, there were good notes, and he asked questions to see if the testator understood his own assets.¹⁸ A novel idea with this case is that there should have been more probing. According to Justice Corbett, the solicitor should have explored whether the testator understood not only what his assets were but also if he understood what the wife’s assets were as he was proposing to cut his children out of an inheritance in favour of his wife.¹⁹ This case posing an extra duty on lawyers shows us the role lawyers play is to understand the entire situation. This case supports the basis for the guidance discussed earlier that lawyer should ask details about family dynamics.

The previous sections were establishing the amount that lawyers should probe and their duty to investigate, but what if they detect that an elder does not have capacity? Knowing the resources available and which rules govern the lawyer’s actions in these circumstances is key for next steps. The lawyer may be worried about providing personal information to others to try and get help for the elder.

This is because of rule 3.3-1 in the professional rules of conduct:

“A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless:
(a) expressly or impliedly authorized by the client;
(b) required by law or a court to do so;
(c) required to deliver the information to the Society; or
(d) otherwise permitted by this rule.”²⁰

On the face of this section, it seems there is no authority for lawyers to disclose the information, but the commentary provides further guidance where lawyers can consider the circumstances of the situation. It states that they can look at the “reasonableness of the lawyer’s belief the person lacks capacity, the potential harm to the client if no action is taken, and any instructions the client may have given the lawyer when capable of giving instructions about the authority to disclose information”.²¹ This important part of the section gives lawyers the ability to make their own judgement call.

The concept of solicitor-client privilege might seem as though it would prevent lawyers from saying anything. This principle is important to our administration of justice, as the privilege allows clients seeking legal advice to speak freely to their lawyers with the knowledge that their information will not be disclosed without their consent.²² There are three ways around this principle or when its acceptable to break it; the clients waive the right, the exceptions regarding criminal communications, public safety or the right to make full answer and defence apply, or disclosure is authorized or required by another law.²³ In cases of elder abuse, it is rare that the client would consent to disclosure only because the situations we are talking about the elders either do not understand what is going on as they are getting taken advantage of because of their incapacity.

The third option can be used by lawyers to find authorization from a different law in order to break their solicitor client privilege. Federal statute exists for private section organizations who have people’s personal information. Personal Information Protection and Electronic Documents Act (PIPEDA) “requires private-sector organizations to collect, use or disclose people’s personal information by fair and lawful means, with their consent, and only for purposes that are stated and are reasonable”.²⁴ Lawyers majority of the time work in the private sector, so this law could be used to be able to get help for elders. This is because there is a carve out section to this rule where you are allowed to disclose client information in the event you suspect criminal activity.²⁵ This means that even other private companies who suspect elder abuse or fraud taking place have the statutory authority to report it. The concern with this is that this disclosure is fully voluntary.²⁶ The legislation could have enacted an obligation to report rather than leaving it up to these private companies. This would have made it so reporting abuse is not a personal choice and companies could be held accountable.

Similar legislation already exists for Long-Term Care Homes and that section 24(1) imposes a duty on the general population to report abuse and risk of abuse.²⁷ This act and section however only apply to residents of the home. This type of law is necessary because World Health Organization data shows us rates of elder abuse are high in institutions such as nursing homes and long-term care facilities, with 2 in 3 staff reporting that they have committed abuse in the past year.²⁸ Instead of such a specific provision for only residents, Ontario could and should adopt a legislation that is more extensive. This legislation could say lawyers and other professionals are also obligated to report elder abuse in cases of abuse of estate planning/power of attorneys. Ontario can look to Quebec as they have done more research and created greater protections for elders. In 2017, Quebec passed an Act to combat maltreatment of seniors and other persons of full age in vulnerable situations.²⁹ It states that “any health services and social services provider or any professional within the meaning of the Professional Code has an obligation to report any act that may seriously undermine the physical or psychological integrity of a person. This obligation to report concerns persons living in a long-term care facility as well as incapable persons for whom a protection mandate has been homologated.”³⁰ This legislation is analogous to Ontario legislation of protecting elders in long-term facilities, but this Quebec law goes one step more and also protects those under similar situations of guardianship. Ontario would greatly benefit from this and should be consider expanding our legislation to reduce the financial abuse.

After abuse is reported the remedies available are either criminal courts (discussed further) or a remedy from the civil avenue. It is important to ask and gather what course is in the best interest for the elder themselves. There are some typical solutions that one might request such as having the abuser return proceeds from the fraudulent sale of a home/bank account. Another remedy available in a civil court is to make a declaration that real property or a bank account is beneficially belonging to the elder. This happened in Johnson v. Huchkewich, a women took her elderly mother to a lawyer to execute powers of attorney for personal care and property in her favour.³¹ Her mother only spoke polish and the only translator for the legal documents was the daughter.³² Not only is this a failure on the lawyer’s part to check if she had capacity as even on the surface it seemed to have contain bias. There should have been a third-party to translate and the mother should also have been interviewed alone to understand her wishes. The woman after receiving this Power of Attorney transferred $200,000 from the moms account into her own.³³ Ultimately, the judge ordered that the money be returned.³⁴

Protection Tools – Power of Attorney and Guardians

Typically, the law gives great weight to decision making and the assumption that people have the capacity to make financial and legal decisions themselves. For example, in the Substitute Decisions Act we see that a person who is eighteen years of age or more is presumed to be capable of entering into a contract.³⁵ This should be no different when it comes to elders, as capacity should not be assumed to have diminished. There is however continued stigma that elders are unable to make decisions for themselves. Elders should be allowed to make financially risky decisions and how they choose to live their life. The issue becomes when they are not able to understand the consequences of their actions or can no longer understand the information being presented.³⁶ This is an ongoing estate litigation issue and navigating capacity and decision-making abilities in law is complicated as it is covered by multiple acts and laws. Relevant legislation includes the Substitute Decisions Act, the Health Care Consent Act, the Mental Health Act¸ as well as the Human Rights Code – all dealing with specific aspects of decision making and consent.³⁷

The focus typically in estate litigation, which this paper also focuses on is the Substitute Decisions Act and the powers granted under it.³⁸ Power of attorney’s are granted while the grantor still has the capacity to make their own decisions.³⁹ It allows a person with power of attorney over property the authority to make financial decisions in the best interest of the individual who granted the power of attorney such as managing the grantors investments and other financial decisions; managing the grantor’s household and other bills and ensuring expenses are paid on time; managing the grantor’s budget.⁴⁰ The issue with the power of attorney, although if used right could be a good tool is that the abuse of these is common. Although, abuse of this is categorized as criminal matter and not a civil one we do not see many criminal cases in this field. The section that governs this is:

“Theft by Person(s) Holding Power of Attorney: Section 331 of the Criminal Code of Canada: Everyone commits theft who, being entrusted, whether solely or jointly with another person, with a power of attorney for the sale, mortgage, pledge or other disposition of real or personal property, fraudulently sells, mortgages, pledges or otherwise disposes of the property or any part of it, or fraudulently converts the proceeds of a sale, mortgage, pledge or other disposition of the property, or any part of the proceeds, to a purpose other than that for which he was entrusted by the power of attorney”⁴¹

The issue is that with no governing body to oversee if the power of attorney is doing their job correctly there are very few cases prosecuted under this section. It is hard to detect if there is any financial abuse because there is no one tracking where the money is going and what purpose it is being used for. As mentioned before, in cases of elders, they may be afraid to report their trusted ones to the authorities. It also may be difficult to prove the elements beyond a reasonable doubt needed for the criminal charge. Although, this statute seems as though it will protect elder’s against abuse, practically it does very little. For example, if we were to use WestLaw to visualize the amount of cases litigated or even mentioning this statute, since 1991 there are only 17 cases.⁴² This criminal statute is not being typically used, and for those that are concerned about elder abuse typically only seek civil remedies.

The alternative to commencing a criminal trial is to try and have the continuing power of attorney removed. This is difficult as the section that governs termination of a power of attorney states that it can be done if the power of attorney is revoked, the grantor executes a new continuing power of attorney or if the attorney dies, becomes incapable of managing property or resigns, and when grantor dies.⁴³ Thus, if we look at either revoking it or granting a new one both of these can be difficult because the elder may now have diminished capacity. In order to do exercise either of these they would need the same formal requirements as creating one (ie. understand the consequences of their actions).⁴⁴ Now let’s say we have a situation where the elder is no longer able to do these things, the next option would be to try and apply to the court to have the power of attorney revoked. This is what happened in the Ontario Superior Court of Justice decision of McDowell v McDowell.⁴⁵ In the case, the applicant seeks relief from the Court for the removal of Power of Attorney (“Attorney”) for property and personal care.⁴⁶ Although the court said that there was a valid power of attorney to terminate it they identified two issues that must be considered: Whether there is strong and compelling evidence of misconduct or neglect on the part of the Attorney and whether the best interests of the incapable person are being served by the Attorney?⁴⁷ The issue with this is the evidence is not only hard to gather but also the best interests of the elder is a highly contentious issue. The threshold is extremely high as stated in a Re Hammond Estate “There must be strong and compelling evidence of misconduct or neglect on the part of the done duly appointed under an enduring power of attorney before a court should ignore the clear wishes of the donor and terminate such power of attorney.”⁴⁸ Although, with the facts McDowell seemed that the Attorney had been misusing the power for example, transferring a property from grantors name to her own for consideration of only $2, the court ultimately found that there was not sufficient evidence to support the claim.⁴⁹ This case showcases that even in cases where someone reports elder abuse, it is not an easy process to remove someone as their power of attorney. There is a need for an easier remedy for those seeking help against financial power of attorney abuse.

Another alternative is to have a guardian for property, these are appointed by the court where an individual is no longer capable of making decisions regarding their property.⁵⁰ They are too “ensure that incapable persons are well-cared for and that their interests are protected”.⁵¹

Although this is another tool to help others who may need it, there are unfortunate circumstances where guardians don’t act in the best interest of the elder. The problem with this in Ontario is that removal of such a guardian is a long and complicated process. If you want to terminate a court-appointed guardian, you have to file a motion with the court and make legal arguments to convince the court that the guardianship is no longer necessary. The motion materials must be served on all immediate family members of the incapable person, and the family members are able to attend the hearing to challenge the removal of guardianship if they wish.⁵² Guardians are typically appointed by the court as a last resort option. Logically, if the elder does not have people in their life to act as power of attorneys and need a guardian, and that guardian is the one being financially abusive its rare there are other people in their life able and willing to bring forward a removal motion. The Ontario Superior Court of Justice has recently clarified the law with respect to the standard of evidence required to remove a court appointed guardian. The court considered the evidence to determine the outcome only in the best interests of the incapable person.⁵³ Although the courts have eased the requirements for this removal, it seems almost impossible to practically see this application occuring for elders.

Even if the case reaches litigation regarding this, figuring out what is in the “best interest” can involve lengthy litigation processes. The case of Carey v Carey shows how strong and compelling the evidence was in order to be removed as an attorney.⁵⁴ In this case, almost $2,000,000 was spent unaccounted for, and there was no compliance with court orders requiring disclosure.⁵⁵ Similarly in Valente v Valente, the attorney had used her mom’s money to take vacations, purchase a $50,000 vehicle, a $20,000 ring, a Harley Davidson motorcycle and make renovations to her house.⁵⁶ Justice Barnes found this to be “strong evidence of misconduct” and she was removed.⁵⁷ These cases made it an obvious choice to remove the guardian, but this is not always the case. In the cases where neglect is hard to detect or there are smaller amounts of financial abuse, they may not have enough evidence to amount to “strong and compelling” reasoning.

Capacity and Undue Influence

Financial abuse when it comes to will planning is essential to consider and to know if there is any undue influence on the party. This is important because it is how to ensure the testamentary documents are held valid in court. If the Superior Court of Justice is satisfied that neither the person attesting or signing for the testator nor the spouse exercised any improper or undue influence upon the testator, the devise, bequest or other disposition or appointment is not void.⁵⁸ Thus, during client meeting lawyers should also check if there is any concern for undue influence. According to Wingrove and Wingrove, undue influence can be defined as more than mere influence, there needs to be an aspect of coercion so that the person being unduly influenced is made to do something they do not want to do.⁵⁹ This means children simply asking and persuading their elderly parents to give them money is not going to be considered undue influence. It is also likely the person doing the influencing is going to attend the client meetings with them. Thus, meeting alone with the client to see their true thoughts is advised for lawyers. In addition, a good practice is to record down all their notes, so they are able to recall the reasonings of the testator in case down the line they are unable to ask them.

It is also important to note that capacity is not the same thing as undue influence. In the case of Tate v. Gueguegirre, the Ontario Divisional Court found that the trial judge had erred by looking at the issue of undue influence only in the context of capacity.⁶⁰ The case had clear signs of undue influence, yet no separate analysis was done to find out more. Thus, this resulted in the case having to be retried by a different judge.⁶¹

It also may be difficult to prove undue influence in estate litigation. The onus is on the person alleging undue influence to show there was this coercion.⁶² There are however a few situations where the onus flips and the defendant would have to show that there was capacity. For example, this was in the case of Brydon v. Malamas, once the plaintiffs evidence created strong suspicion that testator lacked testamentary capacity, the onus shifted to defendants to prove she had capacity.⁶³ These suspicious circumstances that lawyers can raise are outlined in Supreme Court case Vout v Hay: “Circumstances surrounding the preparation of the will, circumstances tending to call into question the capacity of the testator, or circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud”.⁶⁴ It is easier for estate cases to go the civil route rather than take the abuser to criminal court because the standard of proof is a lot lower. Thus, more elders may prefer to take this route to recover their money or loss incurred. The standard of proof for these cases was outlined in C(r) v McDougall held that there’s only standard of proof for all the cases, on a balance of probabilities.⁶⁵ The severeness of the case does not matter, whether there was undue influence for $50,000 estate or $5 million estate it will remain the same standard.

The earlier mentioned presumption is flipped when in cases of intervivos transfers, if the relationship is such that calls for that presumption. This area of the law attempts to protect the elders. In this type of transfer the Supreme Court said the inquiry should begin with the examination of the relationship between the parties.⁶⁶ The first question to be addressed in all cases is whether the “potential for domination inheres in the nature of the relationship itself”.⁶⁷ This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and war, as well as other relationships of dependent which defy easy categorization.⁶⁸ This is an effective way to prevent abuse in common relationships. Equity basically steps in to prevent influences of certain relations. It should be noted that similar logic could also be added for testamentary gifts, for example if they were challenged and there was a relationship of dependency/POA situation there would have to show the testator infact intended the transfer. They should start with this because the presumption of undue influence can still be rebutted. For example, using the following ways: lack of opportunity to influence the donor, The donor had independent legal advice, The donor had the ability to resist any such influence, The donor knew and appreciated what they were doing; or there was undue delay in prosecuting the claim, acquiescence, or confirmation by the deceased.⁶⁹ This would be helpful in cases of elder abuse because then the burden is not to gather evidence for those looking to protect the elder.

Further Barriers and Change

Throughout this paper, there has been a discussion of barriers to receiving justice in elder abuse cases. This section focuses on further reasons why elder abuse has gone unnoticed for so long.

Data driven from American studies have recognized that projections of abuse likely underestimate the actual population prevalence. For every incident of abuse reported to authorities, nearly 24 additional cases remain undetected.⁷⁰

To begin it may be that the elder is not able to communicate their wishes due to physical or mental health issues. Some statistics to illustrate how this point will worsen over time; The aging Canadian population is expected to create an increase of about 40% in cancer cases by 2030.⁷¹ This will result in 277,000 new cases of cancer in 2030.⁷² The number of Canadians living with dementia is expected to rise 66% over the next 15 years.⁷³ The risk of dementia doubles every five years after the age of 65.⁷⁴ By 2041, seniors will have the highest rate of mental illness in the country.⁷⁵ These health concerns should alarm us to advocate for a focus on elder issues and to ensure we are growing the law along with the needs of the community.

Another issue for elders is the dependency they may have on their abusers. Elders who are being taken advantage of may only have their abuser as someone who would look after their everyday needs. For example, in a long-term care home they may not have any family who they can report the abuse too. They also might not know how to report it, an issue of access. In a study done by CARP of the issue of elder abuse in the context of care facilities they found that fear was a real deterrent to reporting abuse; “A number of consultees told the Commission that families may also be too afraid to complain about the abuse of their older relatives because they fear retribution against their loved ones in the form of poorer care or further abuse”.⁷⁶ They may not also want to complain because in many of these cases the person taking advantage of them is their own children. Fear of ruining the children’s lives with legal battles may also prevent elders (or others) to create a civil case. The stigma alone of a court case as their only option of recourse may prevent elders from pursuing this. Thus, it is key to prevent elder abuse, because once it begins may be harder to detect and resolve.

To further the reasoning above, Canada also has a very slow response rate when investigating elder abuse in institutions. Studies, investigations, and trials may take too long that the elder may die and the issue does not get resolved. There have been not a lot of real studies on abuse in institutions in Canada. This issue is being overlooked by Canadian scholars, as even some of the studies used for the purpose of this paper have had to been American studies. There has however been guesses as to why this issue is being ignored. Some of these reasons include “the lack of comprehensive policies with respect to infirm seniors; financial incentives that contribute to poor-quality care are built into the long-term care system; poor enforcement of institutional standards; poorly trained staff; and work related stress”.⁷⁷ This shows us the issue is a more structural problem than is being realized and discussed.

One option for elders who lack mental capacity and have no one to take care of them is to have their finances managed by the Office of the Public Guardian and Trustee (OPGT). The OPGT’s role is to protect the rights and property of such people who lack the mental capacity to do this themselves.⁷⁸ The audit of the office resulted in the following summary “the Office of the Public Guardian and Trustee (Public Guardian) could not fully demonstrate that it has protected the financial interests of the mentally incapable adults under its guardianship. We found that weaknesses in the Public Guardian’s internal control systems and procedures put the assets it manages on behalf of clients at risk of loss or misappropriation.”⁷⁹ So even if you have a guardian the office is not being handled well enough to take care of senior’s assets. If we go a step forward the OPGT also can are also the ones who are called to and complained about elder abuse. The problem is that even though the law requires the OPGT to investigate elder abuse and harm it only does so if there are “serious adverse effects”.⁸⁰ The threshold is extremely high and thus they only investigate the rare case. This is because this office is seen as a last option and does not have the resources to investigate every claim. This results in a lot of cases (of the rare that are reported) to be discarded.

One of the biggest issues in estate litigation that needs to be changed is the processing of Power of Attorneys. Currently, power of attorney’s can be executed the same way a will yet there is no process of probate in Ontario. There are two types, a regular one and then a continuing power of attorney that will last even if the individual loses capacity.⁸¹ This creates a large potential for abuse by the power of attorney holder because the person is not able to revoke it (since they no longer have capacity). This is an extremely careless method because when an abuser takes this paper to the bank they also have to way of checking if this is real and valid. They cannot investigate if there was capacity at the time or even if there was undue influence. All the banks can check truly is on its face does it seem to be witnessed and signed and if they have no other reasons to believe its suspicious it will be held valid. This is very discretionary and in the hands of bank workers who are often not trained on fraud and preventing elder abuse.

A proposed solution to this problem is to create a registrar system where Power of Attorneys will need to be validated and updated. Currently, there is no requirement that these documents be registered. This will greatly benefit elders because a similar process to probate can take place where suspicious activity can be monitored. This is not a unique concept to Ontario (as we do this with wills) but also it can adopt similar procedure that Quebec goes through. Before someone can use the power in a power of attorney (or in Quebec a protection mandate), they must have a judgement from the court regarding their incapacity.⁸² This process called homologation is lengthy process where health and social services professionals are consulted.⁸³ This centralized system would decrease the opportunity for elder abuse to be missed and should thus be adopted by Ontario too.

This registrar system would also provide clarity for those who want to know what the updated POA/protection order is. Currently, if you have chosen to cancel your Power of Attorney or draft a new one the only way to notify people is by giving them a copy. There is no way for lawyers/bankers to search a database to see any past power of attorneys that may or may not exist out there. This process creates a greater potential for fraud. It is suggested that once clients want to revoke it and write down their revocation that they find the original and have it destroyed.⁸⁴ This seems like a tedious process one that can be done far more efficiently. Now if we look at Quebec’s example their registrar ensures that the protection mandate was the last one the person signed and that it was not cancelled. This is done by checking the person’s papers and two registers: the Registre des mandats de la Chambre des notaires and the Registre des mandats du Barreau du Québec.⁸⁵ This kind of online registry would prevent financial abuse and lead to less abusive power of attorney’s. The reason this is needed can be displayed in the case of McMaster v McMaster.⁸⁶ In this case, the mother listed her two sons as co-attorneys.⁸⁷ She failed to tell one son so he had no idea and also had nowhere to check who the power of attorney was.⁸⁸ The brother who knew used all the mothers assets carelessly and spent almost $2 million before this abuse was discovered.⁸⁹ If there was a registrar then all parties would have been aware of the situation and this financial abuse of the mothers assets, and the litigation, could have been avoided.

Another potential estate litigation that could have been avoided by this registrar is the case of McDowell.⁹⁰ In this case, the applicant was seeking removal of a power of attorney for her father.⁹¹ The Power of attorney was for her father’s second wife, who he had been with for six years.⁹² During this time the applicant states that she noticed her father’s mental capacity was diminishing.⁹³ The worst part of this case is that her father went missing for two days only to be discovered at the hospital where the daughter is blindsided with the fact that her father had granted this power of attorney to the second wife.⁹⁴ These type of scenarios could be avoided because if there was a registrar then when the power of attorney was being validated the family could have had their say. They would also have been able to determine at that time if the father had capacity and thus there would not be the need for a lengthy trial to determine it.

Another alternative to the register would even be to mandate that one of the witnesses for a power of attorney need to be a lawyer. Currently, the witness can be any two people, they do not have to be lawyers.⁹⁵ If the person had to be vetted by a lawyer this at least adds one layer of protection for elders who may have diminished capacity. Another potential layer of protection is mandating that no one can alone hold a power of attorney. If they made co-power of attorney’s mandatory it could help because they would need to be held accountable to each other. Other methods to keep power of attorney’s accountable is mandating a duty to consult. This could look like a group of elder’s or family members that would advise someone with a power of attorney on how to manage the money wisely. A novel law could also create mandatory yearly reports on how the attorney managed the finances. This would help lower financial abuse because it would make people keep records of their transactions and explain their motives. Naturally, having to explain fraud and the sense that there would be an “audit’ would lower the risks for elder abuse.

The trend we are seeing is a funnelling effect, very little elder abuse is reported, and once there it is either the tools are not meeting the needs of the elders, or the concerns are being discarded altogether. Change is needed in this field within societal focus on this issue and within the law. To begin, we need to invest more time with conducting research and finding out the scope of issues and their causes. Enhanced legislation ought to have been drafted to address the needs of the growing elder population. Without such reform to the legal system, we are leaving elder vulnerable to a high risk of financial abuse.

BIBLIOGRAPHY

LEGISLATION

Long-Term Care Homes Act, 2007, SO 2007, c8, s24(1).

Personal Information Protection and Electronic Documents Act, SC 2000, c5, s20.

Substitute Decisions Act, 1992, SO 1992, c 30 s2.1.

Succession Law Reform Act, RSO 1990, c S26 s12(3).

JURISPRUDENCE

Banton v. Banton, 1998 CanLII 14926 at para 121, [1998] CarswellOnt 3423.

Brydon v Malamas, 2008 CarswellBC 1293, 2008 BCSC 749.

C(R) v McDougall, 2008 SCC 53 at para 40.

Carey v Carey, 2018 ONSC 4564

Goodman Estate v Geffen, 1991 CarswellAlta 557, 1991 CarswellAlta 91.

Johnson v. Huchkewich, 2010 ONSC 6002.

Maharaj v. Maharaj, 2015 ONSC 5775.

McDowell v McDowell, 2021 ONSC 3139 at paras 1-15 [McDowell].

McMaster v McMaster, 2013 ONSC 1115.

Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23 (CanLII)

Tate v Gueguegirre, 2013 ONSC 720.

Teffer v. Schaefers (2008), 2008 CanLII 46929; Hammond Estate, Re 1999 CarswellNfld 23, [1999] NJ No28.

Tribe v Farrell, 2006 BCCA 38.

Valente v Valente, 2014 ONSC 2438.

Vout v Hay, 1995 CarswellOnt 186, 1995 CarswellOnt 528.

Walman v. Walman Estate, 2015 ONSC 0185 [Walman].

Wingrove v Wingrove (1885), 11 PD 81 at para 82.

SECONDARY SOURCES

“Undue Influence in Inter Vivos Transactions and Transfers” (October 10, 2018), online: Kimberly A. Whaley

“WestLaw, Criminal Code s331, Citing References”

An Act to combat maltreatment of seniors and other persons of full age in vulnerable situations, SQ 2017, c 10. Canada, Report by the Ontario Human Rights Commission., “Time for Action, Advancing Human Rights for Older Ontarians” (Ontario Human Rights Commission, 2002) at 67, online (pdf)

Canada, Report by Canadian Centre for Elder Law., “A Practical Guide to Elder Abuse and Neglect Law in Canada” (A Division of the British Columbia Law Institute, 2011) online (pdf)

Canada, Report by Government of Canada., “What Every Older Canadian Should Know about: Financial Abuse” (Government of Canada, 2017) at 1, online (pdf)

Canada, Report by Office of the Privacy Commissioner of Canada, “A Guide for Individuals Protecting Your Privacy; An Overview of the Office of the Privacy Commissioner of Canada and Federal Privacy Legislation” (Office of the Privacy Commissioner of Canada, 2015) at 10, online (pdf): [Link].

Canada, Report by the Ontario Human Rights Commission., “Policy on preventing discrimination based on mental health disabilities and addictions” (Ontario Human Rights Commission, 2014) at 1 online (pdf).

Canadian Medical Association. “The state of seniors health care in Canada”. Canadian Medical Association, 2016.

Community Legal Education Ontario, “Continuing Power of Attorney for Property” (2020), online

Criminal Code, RSC, 1985, cC-46 s331.

“Elder Abuse” (4 October 2021), online: World Health Organization [Link].

Quebec Curateur Public, “Homologation of a protection mandate” (2002), online: Gouvernement du Québec [Link].

Jennifer Storey, “Risk factors for elder abuse and neglect: A review of the literature.” (2020) Aggression and Violent Behavior, 50.

L. McDonald & A. Collins, “Abuse and Neglect of Older Adults: A Discussion Paper” (Paper delivered for the Family Violence Prevention Unit, Health Canada 200).

Law Society of Ontario, “Rules of Professional Conduct” (22 June 2000; amendments current to 24 February 2022), online.

Le Barreau du Québec, “Search for a will or mandate” (2022) online.

Quebec Curateur Public, “Homologation of a protection mandate” (2002), online: Gouvernement du Québec

Standing Committee on Public Accounts, “section 3.09, 2019 Annual Report of the Office of the Auditor General of Ontario” (2021), online, Ontario Disability Support Program.

“Toronto Estate Lawyers Assisting with Power of Attorney Disputes?”, online: EisenLaw [Link].

“What are some signs of elder abuse?”, online: GaleLaw.

Endnotes