Elder Abuse and Remedies
Elder abuse is an unfortunate reality faced by many of the over 2 million Ontarians over the age of 65. Abuse can stem from vulnerability and capacity issues rendering people dependant on others for their basic needs.
Elder abuse refers to any intentional or neglectful acts of violence or mistreatment from those in a position of power or trust over older populations including spouses, children, friends and caregivers. This can include physical abuse, emotional abuse, financial exploitation, abandonment and violation of basic needs and rights. Indicators of such abuse include sudden changes of behaviour and appearance, unexplained injuries, drastic changes in financial situations, lack of basic care, and conflicts between older people and their caregivers.
As people age, the risk of health and memory issues increases – which can severely impact a person’s ability to understand the information needed to make an informed decision and the consequences of making/not making such a decision.
Criminal Remedies
Under the Criminal Code of Canada abusers of the elderly may be punished by indictable offences – such as theft, criminal breach of trust, forgery, fraud, failure to provide the necessities of life, and criminal negligence. Jail sentences can be more severe if evidence exists that the offender abused their position of trust over the victim.
Civil Remedies
In our legal practice, we often are engaged in elder abuse cases that involve the misuse of power of attorney documents (“POAs”) by substitute-decision makers. Legal proceedings in respect of these issues can involve:
- Misappropriation of funds by a POA for Property;
- Restricting access to an incapable person, and refusing to foster certain relationships;
- Pressuring an incapable person to sell property;
- Predatory marriages; and
- Many more….
Through civil remedies, which generally are meant to put victims of abuse in the same or similar position they would have been if the wrongdoing never occurred – abusers can be held accountable, and substitute decision-makers can be removed/terminated by Court Order.
A substitute decision maker for property can also be ordered to “pass accounts.” This requires them to account for each and every transaction they have made on behalf of the incapable person and from the incapable person’s accounts, outlining how they have managed their assets. If a court finds that the grantor’s assets have not been managed in a matter in line with the Substitute Decisions Act, the substitute decision maker can be removed and ordered to pay back or return any assets they may have taken improperly or transferred into their name.
In Closing
Elder abuse is a prevalent issue in our society and one that carries serious consequences. If you or someone you know is a victim of elder abuse, you should contact local resources, such as the police, a lawyer, or a community resource – like Elder Abuse Prevention Ontario: https://eapon.ca/