Elder Abuse - Legal Options in Ontario

There may be as many as 150,000 seniors being victimized in Ontario. The abuse can take many forms. One common form of abuse is financial. The purpose behind this article is to provide some information to people on the first steps they might consider when discovering the problem.

Signs of financial abuse

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

1. Has the Power of Attorney been change?
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 a Power of Attorney is a fiduciary. What that means is that 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 against that Power of Attorney’s 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 911. 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. 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. The lawyers at ACE will talk to people on the phone and if more than a phone call is necessary they may make an appointment. Their phone number is 416-598-2656.

-          Hire a Lawyer and seek an accounting. Powers of Attorney have to keep records and receipts of all money they received on behalf of the person under their care. They also have keep records of the money spent.

If you believe an elderly person is being financially abused write down all the facts you are relying upon to support that belief. The lawyer you hire will want to know:

1.      Who is the power of attorney for property?

2.      Who has control over the elderly person?

3.      What is your relationship to that elderly person?

This last point is very important because under the Substitute Decisions Act, the Power of Attorney must keep accounts of all transactions involving property. The courts take this duty very seriously. The court may, on application order that the attorney have to pass his accounts.

Who may apply to the court?

1. The elderly person in question;
2. A dependant of the elderly person;
3. The Public Guardian and Trustee;
4. The Children’s Lawyer;
5. A judgment creditor of the elderly person and,
6.  Any other person who seeks and obtains permission of the court to apply.

If a court has found that the power of attorney abused their position the court can remove him/her and appoint a new guardian of person. If that Power of Attorney has been unjustly enriched at the expense of the elderly person then the court may order restitution. It may be impossible to recover the asset taken in its original form and the court may provide a tracing order.

If you need a lawyer it is always a good idea to ensure that the person you hire has expertise in the area.

Resources

-          Ontario Ministry of the Attorney General website

-          Advocacy Centre for the Elderly

-          Public Health Agency of Canada  discusses the financial abuse of the elderly and possible ways to stop it.

-          Ontario’s Seniors’ Secretariat

ABOUT THE AUTHOR: Charles B. Wagner
Charles B. Wagner is an experienced Toronto estate and commercial litigator. His legal practice focuses on disputes related to Will Challenges, Capacity Litigation, Executor Removal, Support Claims and other related estate litigation. Contact Charles B. Wagner

A great way to start your search for a local Canadian Elder Law lawyer is at Canadian-Lawyers.ca. Go to the 'Find a Lawyer' search box that appears on the right hand side of this screen to start your lawyer search. Type in Elder Law and or the name of the law firm, the city and the province that you are looking to hire a lawyer from, and click on the 'Search Now' button. This will generate a list of local Canadian Elder Law lawyers.