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Financial Exploitation and Elder Abuse

  • Paul Morrissey

    • What is Elder Abuse?[1]

    Several millennia have passed since, according to the Book of Genesis, Jacob and his mother, Rebecca, conspired to trick Isaac who was, according to biblical scholars, by then an ailing and blind 130 year old man. They tricked him into believing that Jacob was his brother, Esau, thereby securing for Jacob an inheritance that was to go to Esau. Things worked out rather well for Jacob, what with his 12 sons, one of whom, with his multi-hued coat, inspired a musical. Things did not work out so well for Esau.

    While some may take issue with my characterization of this as the earliest recorded instance of elder abuse it nevertheless bore all the hall marks of financial elder abuse: a vulnerable victim who had developed some degree of reliance upon the abuser; the abuser being a family member; and the manipulation and tricking of the victim, for the benefit of the abuser.

    There is no universally accepted definition of “elder abuse”. However, most definitions recognize that it encompasses physical, sexual or psychological abuse, neglect, abandonment, and financial exploitation. It occurs most often in a relationship where there is reliance upon the abuser or an expectation of trust.[2]

    How prevalent is it?

    According to studies cited by the World Health Organization in 2017, psychological and financial abuse topped the list in terms of prevalence, affecting close to 19% of seniors.[3] However, no one truly knows how many people are suffering from abuse and neglect. A Canadian study estimated that only 1 in 5 cases are reported.[4] The World Health Organization has suggested that non-reporting is much more dramatic: it suggests that only 1 in 24 cases are reported.[5]

    Prevalence estimates are affected by the fact that many victims are incapable of reporting abuse. Others are too frightened, intimidated or embarrassed to report the abuse. People with dementia are particularly vulnerable because of impairments in memory, judgment and communication abilities. A 2010 study cited by the National Center on Elder Abuse indicated that 47% of individuals with dementia had been mistreated by their caregivers.[6]

    What are the Risk Factors?

    Any senior can be victimized. However, studies have identified “risk factors”.[7] They include:

    Who are the Abusers?

    Most abusers are people the victims know: predominantly their adult children and in particular male adult children. Second in line are spouses and then grandchildren, followed by neighbours and care givers. They are people the victims have come to rely upon, and people against whom the victims are close to defenceless. This can make elder abuse very difficult to detect and prove.

    The prototype abuser is an unsuccessful adult (more often a son) living with his parent or parents. One Ontario legal expert estimates that this accounts for around 75% of cases of financial abuse being perpetrated against seniors in Canada.[8] The abuser may have some sort of dependency problem or mental health issue. He or she may have moved back in after a job loss, a financial setback or a failed relationship. He or she may be isolated from or have had ongoing conflicts with other family members.

    Examples of Financial Abuse and Exploitation:

    The idea of an adult child moving in to care for an elderly parent, or taking an elderly parent in, is in and of itself laudable, and it is more often than not a good thing for the parent. People want to put off admission to long term care facilities as long as possible, and only a small portion of the population can afford the cost of assisted-living facilities.

    However, this type of arrangement can also lead down the road to financial manipulation and abuse as the adult child begins to assume control over the parent and his or her property. Similarly, elderly people in second marriages may be subject to manipulation as part of a scheme on the part of a child, a stepchild or a spouse, to secure a personal benefit.

    The abuse can take many forms:

    Alongside these activities other forms of abuse may be taking place and in particular, psychological abuse including humiliating, insulting and threatening behaviour, ignoring the elderly person, treating the person like a troublesome child, and withholding from the parent things they may need or want.

    Signs of Possible Elder Abuse:

    Elder abuse is most often a hidden crime. Its victims are often unable to communicate what has happened, or they feel powerless or too frightened or ashamed to speak up. Sometimes they do not even realize they have been victimized. Community Legal Education Ontario has identified some signs and symptoms, including the following:

    To that I would add as “red flags”:

    Recourse and Remedies:

    Elder Abuse is against the law. However, not all abuse will result in a response from a law enforcement agency. In the case of physical abuse such as injury, deliberately withholding food, health services and necessities, or abandonment, the police should be contacted immediately. They should also be contacted if it is obvious that large sums of money or valuable assets have gone missing. These types of events are obvious crimes.

    Social agencies can provide information and connect the victim or caring family members with resources, including emergency shelter and counselling.[10]

    However, many forms of abuse, and I would venture to suggest the majority of abuses being perpetrated, are of a more insidious nature. Where events are open to interpretation, the police may not take any action, and may leave it for the families to seek remedies in the civil courts.

    Civil Proceedings

    Where there has been elder abuse, aggressive action may need to be taken quickly.

    Court proceedings may be required to ensure that the authority of the abuser to use or access the victim’s funds is taken away. Assets should be located, identified and preserved. Persons acting improperly as attorneys or guardians for property should be removed. If the victim is incapable, a court appointed guardian may need to be appointed. Orders for injunctive relief should be obtained to protect the victim from further abuse, and court proceedings must be commenced for orders to reverse the effect of any fraudulent transactions and to require the abuser to return to the victim (or the victim’s estate, if he or she has passed away) all funds and property that have been wrongfully taken.

    In addition to reversing transactions and recovering funds that have been wrongfully taken, courts are prepared to order that the abusers pay punitive damages to the victim.[11]

    If the victim has been induced to change a beneficiary designation on an insurance policy, RSP or RRIF, or TFSA, proceedings can be taken to obtain a declaration that the designations are invalid. If, after the victim has passed away, it is discovered that the victim was induced to change his or her Will, one can seek a declaration that the changed Will is invalid.

    In all cases the choice of a lawyer can be crucial to the eventual outcome. The lawyer retained to deal with the problem must be in a position to act quickly, if the circumstances require quick action. She or he must be sufficiently experienced and conversant with elder abuse issues to recognize what to look for to prove the abuse and to recognize the best steps to take to stop and reverse the effects of the abuse the elderly person has suffered.

    If you have any questions, or there is something we can help you with, contact the Siskinds’ Wills and Estates Lawyers at 519.672.2121. We will be pleased to be of assistance.

    [1] This article focuses in on abuses relating to property and finances. If you have an enquiry involving rights arising from physical abuse please contact Siskinds’ Personal Injury department. If you suspect that physical abuse has occurred or is on-going, please contact your local police force.

    [2] National Centre on Elder Abuse, “What We Do, Research, Statistics/Data” (2017) https://ncea.acl.gov/What-We-Do/Research/Statistics-and-Data.aspx

    [3] World Health Organization Media Centre, June, 2017, https://www.who.int/news-room/fact-sheets/detail/elder-abuse

    [4] CARP, “Elder Abuse: How Widespread is the Problem? (2016) http://www.carp.ca/2016/10/14/elder-abuse-widespread-problem/

    [5] National Centre on Elder Abuse, 2017, supra.

    [6] National Centre on Elder Abuse, 2017, supra.

    [7] National Centre on Elder Abuse, 2017, supra.

    [8] David Hodges, “How to thwart the growing threat of elder financial abuse”, Canadian Press, 2017 , https://globalnews.ca/news/3530124/senior-elder-financial-abuse-saskatchewan/

    [9] Community Legal Education Ontario, “Elder Abuse: the Hidden Crime” (2016) http://www.cleo.on.ca/en/publications/elderab

    [10] Agencies and Resources with additional information and support include Elder Abuse London and Middlesex (EALM), http://www.ealm.ca/ , South West Ontario Regional Elder Abuse Network,
    www.elderabuseontario.com    , Victim Services of Middlesex-London http://www.vsmiddlesex.org/ , The Advocacy Centre for the Elderly, http://www.advocacycentreelderly.org/ , CARP (formerly the Canadian Association for Retired Persons) http://www.carp.ca/priority/elder-abuse/

    [11] Danilova v. Nikityuk 2017 ONSC 4016 (Ontario Superior Court of Justice)

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