There may be as many as 150,000 seniors being victimized in Ontario.1 The elder abuse can take many forms. One common form of elderly abuse is financial. The purpose behind this blog is to provide some information to people on the first steps they might consider when discovering the problem. Let’s first talk about signs of financial elder abuse.
According to the Toronto Police Service Website2 these are some signs to watch out for:
- Has the Power of Attorney been changed?
- Is the elderly person suddenly short of money to pay for living expenses?
- 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 law3 and Ontario’s Substitute Decisions Act4 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. 5
Options if you suspect Elder Abuse In Financial Matters
- Call the Police. The Toronto Police Services Unit has a web site6 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 crime7. 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 Trustee8. 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 Elder Abuse 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. They have an excellent website which will be helpful (http://www.acelaw.ca/) and the lawyers at 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 care9. 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:
- Who is the power of attorney for property?
- Who has control over the elderly person?
- 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.
But who may apply to the court? The elderly person in question, A dependant of the elderly person, The Public Guardian and Trustee, The Children’s Lawyer, A judgment creditor of the elderly person and 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, 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. Now it may be impossible to recover the asset taken in its original form and the court may provide a tracing order
Here are some resources which may be of assistance:
- Ontario Ministry of the Attorney General website. See the section on Elder abuse: http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/criminal_law.php#elder
- Advocacy Centre for the Elderly: http://www.acelaw.ca/services.php
- Public Health Agency of Canada website. This discusses the financial abuse of the elderly and possible ways to stop it. http://www.phac-aspc.gc.ca/ncfv-cnivf/publications/agefinancialab-eng.php
- Ontario’s Seniors’ Secretariat http://www.seniors.gov.on.ca/en/safety/elderabuse.php
- http://www.onpea.org/english/contactus/stategytocombatelderabuse.html ↵
- http://www.torontopolice.on.ca/communitymobilization/elderabuse.php ↵
- https://www.wagnersidlofsky.com/pdf/put_your_own_interests_aside.pdf ↵
- http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_92s30_e.htm ↵
- See section 32(1) of the Substitute Decisions Act which provides “A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.” ↵
- FN6 http://www.torontopolice.on.ca/communitymobilization/elderabuse.php ↵
- http://www.onpea.org/english/contactus/stategytocombatelderabuse.html Note that certain financial abuse can be a crime. For example, theft, fraud, forgery and extortion are criminal offences. ↵
- See a very good article “Elder Abuse: The Hidden Crime” by ACE which is the Advocacy Centre for the Elderly and Community Legal Education Ontario (CLEO) at http://www.cleo.on.ca/english/pub/onpub/PDF/seniors/elderab.pdf ↵
- The duty to account is set out in the Substitute Decisions Act. There are regulations which set out how these accounts must be maintained. Please see ONTARIO REGULATION 100/96 ACCOUNTS AND RECORDS OF ATTORNEYS AND GUARDIANS http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_960100_e.htm ↵