Is an Elder being Abused?
Elder financial abuse occurs in many ways. It can involve:
- Abuse, misuse and/or fraudulent use of a Power of Attorney document
- Living in the older adult’s home without their permission
- Theft of the older adult’s assets, malicious use of a joint bank account, or withdrawing money from their account without their permission or knowledge
Financial abuse (e.g. misuse of money) is the most commonly reported type of abuse against older adults, according to the Canadian Department of Justice. Most commonly, elder financial abuse is conducted by a family member, but it can also be inflicted by a caregiver, service provider, or another person in a position of power or trust.
The National Initiative for the Care of the elderly defines financial abuse as:
“An action or lack of action with respect to material possessions, funds, assets, property, or legal documents, that is unauthorized, or coerced, or a misuse of legal authority.”
This can occur in a variety of ways, including the ones mentioned above. Other ways financial abuse can take place include:
- Monetary gifts made under coercion (force) or threat
- Inappropriate use of a bank card, when a family member or friend is given the PIN to help with specific activities
- Repeated borrowing, or family loans that are never paid back
- Care agreements, where the older adult transfers property to an individual in exchange for care, which they do not provide
- Predatory marriage (when someone marries an elder person for financial gain)
- Pressuring an older person to sign documents they may not understand, or to sign over their home, vehicles, or investments
While every case is different, common indicators of financial abuse on older adults can be:
- 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/or their will
- Lack of knowledge about their financial situation
I think I or someone I love is experiencing elder financial abuse, what can I do?
We can assist you to put together the evidence required to prove elder abuse and assist you with civil remedies which focus on restitution. If abuse is found, the abuser may be ordered by the court to pay back the amount they misappropriated to the older person (or their estate if they are no longer alive). In addition, there may be punitive amount in further damages.
DISCLAIMER: If you/your loved one is being abused physically and is in danger, please contact the appropriate authorities such as the police. The information on this website relates to the civil crime of financial elder abuse (Gale Law does not practice criminal law).
Guardians and Power of Attorneys (POA)
If the abuse on the elderly person is being committed by a guardian or power of attorney, you may seek to have this person removed and replaced with someone else. Guardians and Power of Attorneys have legal duties to act in the best interest (fiduciary duty) of the elder person they represent.
Those with abusive guardians can contact the Ontario Public Guardian and Trustee (OPGT) to report suspected abuse as well.
Criminal Punishment
There is no specific section designated for elder abuse, however the type of abuse being experienced can be representative of a crime. Some types of abuses that are crimes are:
- Theft or fraud (e.g. stealing or faking documents)
- Physical abuse
- Sexual Abuse
- Neglect (a lack of care that can harm to an individual)
Choosing to pursue criminal punishment route might lead to the abuser to pay fines, damages (money paid to wronged person), and possibly jail time.
DISCLAIMER: If you/your loved one is being abused physically and is in danger, please contact the appropriate authorities such as the police. The information on this website relates to the civil crime of financial elder abuse (Gale Law does not practice criminal law).
Retirement and Long-Term Care Homes
Under both the Ontario Retirement Homes Act (2010) and Long-Term Care Homes Act (2007), a person has a legal duty to report reasonably suspected elder abuse to either the Retirement Homes Regulatory Authority or Director of the Ministry of Health and Long-Term Care. It is considered a crime to fail to report in these settings.
Suing for Damages
A person typically sues through the civil process (one person suing another) if they would like recover (get back) a financial loss or to be remedied (put back into their original position). A common reason in elder abuse lawsuits is “breach of fiduciary duty”. This means they are suing because a person has violated their legal obligation to act in the best interests of the other individual (an elder in this case). Some remedies (method of trying to correct the issue) that a judge may order are:
- Removal of a Power of Attorney or Guardian
- Repayment of Misappropriated Funds
- Costs/Legal fees: the losing party may have to pay the legal fees of the winning party
Section 33(1) of the Substitute Decisions Act (SDA) outlines that Power of Attorneys /Guardians hold personal liability for any damages (money awarded for being wronged or for suffering loss) that result from a breach (violation) of duty. What does this mean?
Having personal liability means that you are personally responsible (accountable) for mistakes you make. In the context of being a POA or Guardian, this means that you are responsible for your actions in your role as a POA or guardian. If any loss of property (e.g. home, money, etc.) occurs due to specifically your actions, you will be personally responsible for paying any loss of money. Similarly, guardians/POAs will be held responsible for any action that puts an elder into harm.
For this reason, POAs/Guardians need to act responsible in their role. A POA/Guardian who can show that they have acted in a reasonable, honest, and diligent manner may be given relief from their liability (protection from accountability partly or completely) as indicated by s.33(2) of the SDA.
When a POA/Guardian acts deliberately (intentionally) or negligently (with a lack of care) in using their role for the wrong purpose, they may be found criminally responsible for breaking s.331 of the Criminal Code.
Acting deliberately or negligently can be reason for a judge ordering the removal of guardian or power of attorney.
DISCLAIMER: If you/your loved one is being abused physically and is in danger, please contact the appropriate authorities such as the police. The information on this website relates to the civil crime of financial elder abuse (Gale Law does not practice criminal law).