Elder Financial Abuse

According to the Canadian Department of Justice, financial abuse is the most commonly reported type of abuse against older adults.¹ Financial abuse comes in various forms. It can consist of the improper use of joint bank accounts, forgery or abuse involving a Power of Attorney document, sharing an older adult's home without payment or sharing in expenses, misuse, appropriation, or theft of an older adult's assets, transfer of real property, ATM fraud and other.

Often financial abuse is conducted by a family member upon whom the older adult is dependent and who is potentially influenced by or controlled and victimized. Financial abuse can also be inflicted by a caregiver, service provider, or other person in a position of power or trust (where there is a power imbalance).² The National Initiative for the Care of the Elderly (NICE) defines financial abuse as:

“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;” or where someone tricks, threatens or persuades older adults out of their money, property or possessions

Financial abuse can occur through:

• Monetary gifts that are involuntary – e.g. gifts made under coercion, undue influence or threats;
• 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 provided;
• 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 marriage; and
• Pressuring an older person to sign documents that they do not have the capacity to understand.

Indicators of financial abuse on an older adult include:

• changes in living arrangements, such as previously uninvolved relatives or new friends moving in, with or without permission or consent;
• unexplained or sudden inability to pay bills;
• unexplained or sudden withdrawal of money from accounts;
• poor living conditions in comparison to  the value of the assets;
• changes in banking patterns;
• changes in appearance;
• controlling spending;
• confusion or lack of knowledge about a financial situation and execution of legal documents;
• being forced to sign multiple documents at once, or successively;
• being coerced into a situation of overwork and underpay;
• unexplained disappearance of possessions (lost jewelry or silverware);
• changes in Power of Attorney (“POA”) documents;
• necessaries of life denied or not provided by an attorney under a POA (shelter, food, medication, assistive devices)
• being overcharged for services or products by  providers; or being denied the right to make independent financial decisions.

Once an abuse is reported or discovered, there are two avenues that can be followed in remedying elder financial abuse: either pursuit through civil courts (lawsuits between private parties) or through criminal courts (where an individual is charged under the Criminal Code by the Crown).

Civil remedies are mainly about restitution, meaning placing the victim back into the place he/she would have been had the wrongful act never happened. In other words – to have the perpetrator pay back the money with punitive result (the payment plus punitive payment of money is called “damages”). While there may well be some element of restitution in criminal cases, the guilty perpetrator would likely be sentenced to jail or probation or some other punitive outcome there may not be any return of the money. In some civil decisions, courts have signaled their willingness to order custodial sentences where necessary, especially in breach of trust cases. Another remedy available to a civil court is to make a “declaration” that real property or a bank account for example, beneficially belongs to the older adult, where a the perpetrator wrongfully assumed control of it.

Some of the civil remedies that a Court can order in financial abuse situations include:

• An Order for the removal of an Attorney under a Continuing Power of Attorney for Property;
• An Order to “account”;
• An Order for repayment of money improperly taken; and
• An Order to “set aside” a transfer of title or bank account into joint names.

In Bishop v. Bishop³ , Justice O’Neill of the Superior Court found a POA granted to an elderly woman’s son void ab initio based on medical evidence that she did not have capacity to grant a CPOAP to her son at the time that she did. Alma Bishop gave her son a CPOAP in 2005. The medical evidence included a score of 22/30 on the mini-mental health status test administered by her family physician and a diagnosis of mild Alzheimer disease.

The case of Dhillon v. Dhillon⁴ involved a wife and son who, while the husband/father was living in India, used a forged POA to sell residential property that the husband owned, and used another forged POA to withdraw funds from the husband's RRSP and bank account. The wife used the proceeds from the sale of the first house to purchase two subsequent houses. At trial, the wife and son were found jointly and severally liable for the sale of the first house, and the wife was found liable for withdrawals from the husband's accounts. The husband was awarded a considerable amount in damages, including $5,000 in punitive damages and special costs at 80 percent of solicitor-client costs. The British Columbia Court of Appeal affirmed the trial judge’s finding of fraud on the part of a wife and son and substantially upheld the decision of the trial judge with respect to damages.

In Johnson v. Huchkewich⁵ , one of the widows’ two daughters invited her mother to stay with her while the mother’s home was being painted. What ensued was described by the Court as “a disgraceful tug-of-war over [the widow], clearly motivated by [the daughter’s] desire to obtain some or all of [the widow’s] assets". During this brief visit, the daughter took her mother to a lawyer and had her execute powers of attorney for personal care and for property in her favour. Not only did the daughter instruct the lawyer, with her mother present, but the daughter explained the document to her mother in Polish; and no one else in the room understood Polish. Shortly after that, and as stated by the Court “before the ink had dried”, the daughter used the power of attorney to transfer $200,000 from the joint account in her mother's and other sister's names into her own account. Fortunately, the justice system intervened, but not without the attendant costs, and a number of orders were made against the attorney/daughter, including:

• An order that she return of the $200,000 to the joint bank account;
• An order that the other sister/daughter be appointed as guardian of the widow’s property and personal care and that the widow would reside with that daughter and her family; and, among other things,
• An order restraining the attorney/daughter from harassing and annoying her sister/the appointed guardian

Based on the examples listed above it is clear that as elder financial abuse continues to exist, the public, the police, the community and those involved with older adults must be aware of its devastating effects and how important it is to keep a watchful eye out for older family members, neighbours, and acquaintances. Fortunately, several remedies exist to address elder financial abuse once it is detected or reported, but many may be under-utilized, unknown or simply unavailable to some. In certain instances, civil remedies are more appropriate, especially where the evidence cannot prove all elements of a criminal charge beyond a reasonable doubt.

Resources:

Toronto Police Seminar, Civil and Criminal Remedies, Elder Abuse, March 9, 2018

Background Paper “Financial Abuse of Seniors: An Overview Of Key Legal Issues And Concepts” Prepared By: Canadian Center For Elder Law For: International Federation On Ageing March 2013

Canadian Center For Elder Law Website

Law Commission of Ontario, Legal Capacity, Decision-Making and Guardianship Project

WEL Paper - Elder Financial Abuse: Predators, Attorneys, Guardians and Court Proceedings - Presentations On Elder Law Litigation And Older Adults In The Courtroom: Lessons Learned

WEL Paper - Financial Abuse Of The Older Adult: Are We Doing Enough?

WEL blog and paper: Power of Attorney Documents: Financial Abuse, Risks and Misuse

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 Partners.