Elder Abuse: The Hidden Epidemic

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Charles B. WagnerPic: Charles B. Wagner

Sounding the Shofar: A Wake-up Call to the Epidemic of Elder Abuseis an article written by Joy Solomon the Managing Attorney at the Harry & Jeanette Weinberg Center for Elder Abuse Prevention and intervention. Her article examines the epidemic of elder abuse from a Jewish context. She wrote this article in the hope that increasing public awareness to the problem can lead to reducing the incidence of elder abuse in the Jewish community. Her article is available on line at https://www.policyarchive.org/bitstream/handle/10207/9802/JJCS81-3-12.pdf?sequence=1. In my professional experience I can attest to the fact that the problem of elder abuse exists in the Ontario Jewish context as well.

According to the Province, there may be as many as 150,000 seniors being victimized in Ontario. One common form of abuse is financial. The purpose behind this article is to provide information on options when discovering the problem. Let’s first talk about signs of financial elder abuse.

According to the Toronto Police Service Website these are some signs to watch out for:

1. Has the Power of Attorney been changed?
2. Is the elderly person suddenly short of money to pay for living expenses?
3. Has the elderly person been brought to sign legal documents they say they don’t understand?

Another red flag of financial abuse of the elderly occurs when large gifts or transfers of money take place. It is normal for children to become joint account holders in order to help parents pay their bill. However, it is suspicious for large chunks of cash to be transferred out of the joint accounts as gifts or expenses unrelated to the real owner of the account. Often the powers of attorney say that their elderly parent gave them this money as a gift. That might be true – but then again one must ask if there was there pressure placed on an elderly vulnerable person to make that gift? The common law and Ontario’s Substitute Decisions Act makes it very clear that as a fiduciary the power of attorney has undertaken to do things on behalf of a potentially vulnerable person and must act exclusively for the benefit of that person putting his interests totally aside. Taking money from an elderly person who is relying on that power of attorney may go the duty to act diligently, with honesty and integrity, and in good faith for the donor’s benefit.

Options if you suspect Financial Abuse.

Call the Police. The Toronto Police Services Unit has a web site which describes their efforts. Their contact numbers for a non emergency is 416 808 7040. For an emergency it is 411. The problem is that while the provincial government recognizes that the financial abuse of the elderly is horribly wrong, it is not always viewed as a crime. Furthermore, the police will sometimes view accusations against a power of attorney as a family dispute not warranting police charges.

Call the Office of the Public Guardian and Trustee(FN8). In the context of my practice I have dealt with the Public Guardian and Trustee a lot. They are altruistic and genuinely interested in helping the elderly. The problem is that they are under resourced and view themselves as a last resort. If they are convinced that it is a very serious financial abuse of an elderly person they will investigate a report that a mentally incapable person has been victimized and apply to court to become the abused elderly persons Temporary Guardian of Property. To report this type of serious abuse you can call the OPGT at 416 327 6348.

Educate yourself on the issues and get Legal Help. An excellent place to start is with the Advocacy Centre for the Elderly (ACE) a community based legal clinic for low income senior citizens. Their phone number is 416-598-2656.

Hire a Lawyer and seek an accounting. If a power of attorney abused their position the court can remove him, and appoint a new guardian of person. Powers of Attorney have to keep accurate records and receipts of all money received and spent. The courts take this duty very seriously may order that the attorney have to pass his accounts. If that Power of Attorney has been unjustly enriched at the expense of the elderly person then the court may order restitution. If it proves difficult to find the assets in their original form the court may provide a tracing order.

It would be a mistake to treat this article as substantive legal advice. For those considering commencing an application to have a attorney for property pass his accounts there is no substitute for hiring a competent lawyer whose own research, analysis and judgment should be canvassed.

Charles B. Wagner practices Estate Litigation in Toronto. For further information about the issues raised above, you can access www.cbwagnerlaw.comor contact the lawyer at cwagner@cbwagnerlaw.comor call 416-366-6743.