As Canada enters its fifth month of the coronavirus pandemic, one horrifying aspect of the virus has become devastatingly clear: COVID-19 has disproportionately and fatally impacted our senior population.

The over-representation of elders amongst coronavirus victims is staggering: it is estimated that long-term care residents account for over 80% of those who have died from COVID-19 nationwide.

The virus, by ravaging the weakest members of our society, has revealed deep-rooted systemic deficiencies in long-term care regimes across the country.

In addition to exposing shortcomings in the way that senior care homes are set up, the coronavirus has shown just how vulnerable and isolated elder adults in this country are in general, something that estate and capacity litigators are sadly all too familiar with.

As we age, we are not only confronted with increasing physical and mental health issues that can impair general function, mobility and cognition, but we also often find ourselves with fewer and fewer supportive friends and family members. Spouses, friends and relatives pass away or grow apart, children move out or become consumed with their own responsibilities, and oftentimes seniors are not only saddled with diminishing health, but find themselves increasingly isolated as they age.

This solitude of aging, coupled with deteriorating health, means that oftentimes the only plausible solution for seniors to live comfortably, safely and meet their care needs is to move into a long-term care facility where the necessary care can be provided for them.

Another result of poor health combined with the loneliness of elders, which we see often in the world of estate litigation, is that seniors become increasingly susceptible to undue influence, coercion, fraud, and even financial and/or physical abuse by unscrupulous individuals who pick up on the fact that seniors are particularly vulnerable to be taken advantage of.

The elderly are regularly the most targeted and victimized group when it comes to fraud scams. And they can find themselves defenceless to schemes by those who seek to take advantage of them.

As estate litigators, every day we are confronted with cases where the vulnerability of elder adults results in financial abuse, physical abuse, or seniors’ testamentary planning (their wills, Power of Attorneys, beneficiary designations, etc) being changed as a result of coercion or undue influence exerted by opportunistic perpetrators. One of the most tragic aspects of this is that these perpetrators are often those individuals who are closest to the senior, people who the senior relies on for care or financial support and who have the greatest ability to access and further isolate the elder adult. Isolating an elder adult from their already diminished network of supportive friends and families is a trademark tool used by perpetrators of elder abuse, fraud or undue influence.

So as we reflect and hopefully emerge as a society from the coronavirus pandemic, in addition to re-evaluating how our long-term care facilities are run, we should also be reflecting on the challenges and helplessness commonly faced by our seniors generally and how these difficulties can be addressed, before it’s too late.

Simply raising public awareness of the prevalence of elder abuse and the vulnerability of seniors is one important step toward confronting these problems, although not enough on its own.

Another key measure is good planning by adults, to ensure that they and their assets are secured and will be properly cared for as they age by trustworthy individuals. Appointing appropriate, loyal individuals as one’s fiduciaries or attorneys for property and personal care is a crucial step that all adults should take, so that when the challenges of aging do strike, trustworthy advocates are in place who will ensure that seniors and their property are looked after (not abused) as they grow more vulnerable. These steps can also help to ensure that seniors are placed into appropriate care homes and their living situations reflect their prior wishes as they age.

Finally, remaining in close contact with the older adults in our lives – checking in regularly on their physical, mental and financial status – is crucially important to make sure that our elders are properly cared for and not exposed to neglect or abuse. Obviously, these check-ins are made more difficult during a viral pandemic which requires social distancing, but it is also more important than ever. We should also be aware of warning signs that a senior may be vulnerable and/or susceptible to being taken advantage of, including:

• Increasing social isolation;
• Increasing dependence or reliance on select individuals in fulfilling emotional, physical or financial needs;
• Recent family conflict or bereavement;
• The adult has made a new will or power of attorney document(s);
• The adult has made questionable or inexplicable financial decisions;
• The adult has shown changes in their behaviour.

For more information relating to the vulnerability of our elder population, and elder law in general, you can access our publication “Whaley Estate Litigation on Elder Law” at this link: http://welpartners.com/resources/WEL-on-elder-law.pdf

Thanks for reading.

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.