Elder Financial Abuse
A definition of financial abuse offered by The National Initiative for the Care of the Elderly (NICE):
“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;”1 or where someone tricks, threatens or persuades older adults out of their money, property or possessions2 ,
Financial abuse can occur through3:
- Monetary gifts that are involuntary – e.g. gifts made under coercion, undue influence or threats4 ;
- Misuse of credit card or bank card by a friend or family member given access to the PIN number in order to assist the older person with specific activities;
- Inter-family loans that are not repaid and repeated borrowing;
- Misuse of a power under a general or enduring power of attorney;
- Misuse of funds in a joint account created ostensibly to allow another person to assist the senior with financial transactions (however, the person spends the money for their own uses);
- Private care agreements, whereby a senior transfers title of property in exchange for anticipated care that is not provided5;
- Withholding of the older person’s pension cheque by attorney or other decision-maker or family member with access to the older person’s mail;
- Forging the older person’s name or altering documents to get permission to access or dispose of assets, including forging cheques;
- Theft of cash, credit cards, bank cards, or valuables;
- Cashing in investments without permission;
- Forcing a senior to sign over their home or vehicle;
- Predatory marriage6; and
- Pressuring an older person to sign documents that they do not have the capacity to understand.7
1. Neighbours, Friends and Families, It’s Not Right! Neighbours, Friends and Families for Older Adults, (Ottawa: Government of Canada, 2010) online: www.neighboursfriendsandfamilies.ca/about-us/its-not-right.html ; (emphasis in the original) [Neighbours, Friends and Families]. This definition was recently adopted in an educational tool developed by the Nova Scotia Government: Nova Scotia Department of Seniors, Understanding Senior Abuse: A Toolkit for Community Champions (Halifax: Communications Nova Scotia, 2012)
2. Neighbours, Friends and Families, supra 1
3. These types of abuse are discussed in : Kathleen Cunningham, Financial Abuse: The Ways and Means (Vancouver: Canadian Centre for the Elder Law, 2012),online: www.bcli.org/blog/ways-and-means-financial-abuse; Joan Braun, Elder Abuse: “An Overview of Current Issues and Practice Considerations” (Paper delivered at a Continuing Legal Education course given in Vancouver, 2009), Continuing Legal Society of BC, [Elder Abuse: An Overview]; Charmaine Spencer, Financial Abuse of Older Adults, (Ottawa: Human Resources and Skills Development Canada, 2012). This list of examples is not exhaustive.
4. For a full discussion of undue influence see BL Law Institute, Project on Undue Influence: recommended Practices for Wills Practitioners (Vancouver: BC Law Institute, 2011) online: www.bcli.org/bclrg/projects/projects-potential-undue-influence-recommended-practices-wills-practitioners >. The publication includes a helpful 4-page tool of red flags and key considerations. Although the resource was designed in response to anticipated statutory changes to the role of undue influence in estate law in BC, the resource contains useful suggestions that would apply outside BC and to other legal and financial transactions.
5. For a full discussion of the legal issues related to family care agreements see BC Law Institute, Report on Private Care Agreements between Older Adults and Friends and Family Members (Vancouver: BC Law Institute, 2002), online: www.bcli.org/bclrg/projects/private-care-agreements-between-older-adults-and-friends-or-family-members>.
6. Predatory marriage is the expression used to characterize relationships where a person marries an older person in order to get access to their money and assets.
7. Supra note 3.
This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation.Link to Practice Areas list