Today, conservatively, 250,000, seniors in Ontario alone experience abuse. Three out of four senior victims are abused by someone they know. The stigma surrounding the subject, and the reality that the abuse is usually perpetrated by a loved one, makes it difficult to determine an accurate rate of prevalence. As our population ages, the likelihood of retaining clients who are victims of, or at risk of being subjected to, elder abuse has increased; especially for those who practise in Wills & Estates and Elder Law. Accordingly, it is paramount that lawyers understand the different types of elder abuse and are aware of the signs of it occurring.
The World Health Organization defines elder abuse as, “an intentional act, or failure to act, by a caregiver or another person in a relationship involving an expectation of trust that causes harm to an adult 60 years and older”. The Canadian Network for the Prevention of Elder Abuse furthers upon that definition and has identified seven distinct forms of elder abuse and the specific harmful actions that are typically committed under each category. The following table summarizes the information they provide on the differing forms of elder abuse.
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Types of Abuse
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Harmful Behaviours
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Physical Abuse
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Includes: hitting or handling roughly – even if no injury occurs, giving too much
or too little medication, physically restraining a person.
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Sexual Abuse
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Forcing an older adult to engage in sexual activity – including: verbal and
suggestive behaviour or not respecting their privacy.
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Emotional Abuse
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Behaviour that impacts a person’s sense of identity, dignity, or self-worth –
including: insults, intimidation, humiliation, infantilization or forced isolation.
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Financial Abuse
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Tricks, threatens, or persuades an older adult out of their money, property, or
possessions.
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Violation of Rights and Freedoms
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Interfering with a person’s ability to make choices – including: withholding
information, preventing visitors, or forcing them into an institution without there being a necessity.
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Neglect
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Intentionally or unintentionally failing to provide the necessities of life – including:
food, clothing, shelter, medical attention, personal care.
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Systemic/Institutional Abuse
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Rules, policies, or practices that harm or discriminate – such as diapering a person instead of helping them to the washroom because it is easier for the
caregiver.
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Even with a thorough understanding of elder abuse and the types of forms it may take; it can be difficult for even trained individuals to detect the presence of elder abuse. A person will likely question if the behaviour they are seeing is indicative of abuse or simply of symptom of being elderly (i.e. difficulty moving, dementia related behaviour, etc.). This is especially true with legal professionals who are usually meeting their elderly clients and their caregiver/family members for the first time, without any knowledge of their history and life circumstances. Regardless, there are certain red-flags that lawyers should be on the look-out for when meeting with elderly clients.
Red Flags
In terms of physical manifestations of abuse, a practitioner should observe their client’s physical appearance for any concerning signs beyond that of the ordinary aging process. Though bruising is more likely to occur as one ages, other ailments such as burns and lacerations do not. One such studied recorded that 40-70 percent of burns in elders were not accidental but due to abuse (See: Bowden ML, Grant ST, Vogel B, et al. The elderly, disabled and handicapped adult burned through abuse and neglect. Burns Incl Therma Inj 1988;14(6): 447–50). Physical signs of neglect such as visibly poor hygiene, malnutrition, and unattended medical conditions (i.e. not having hearing aids/glasses when obviously needed) should also be a matter of concern especially if the client already has a caregiver in place.
Red flags of elder abuse that are typically easier to identify are any financial irregularities or unexplained changes that come to light when being asked to provide legal services. Are you being asked to create a Will that entirely favours a single family member, caregiver, or other non-family member? Is it requested that you update a Power of Attorney that provides the Substitute Decision Maker with greater authority then they had before? Do financial records that have been supplied show unexplained withdrawals? While these could all have simple and understandable explanations, they should alert the practitioner that further questions need be asked to determine if there is any possible abuse.
The Interplay of Elder Abuse and Undue Influence
Elder abuse – particularly emotional and psychological abuse can interplay with the concept of undue influence, but it is difficult to identify and even more difficult to prove even on a balance of probabilities. The case law suggests that influence only rises to “undue influence” when coercion is apparent, but when elderly clients show complete deference to a family member or caregiver or neighbor – and they are anxious or fearful of going against someone else’s wishes – they are a victim of elder abuse.
A practitioner’s intuition will play a key role when engaging with older and vulnerable clients, particularly when it comes to identifying signs of elder abuse and influence that extends the boundary of a supportive family member or friend.
Client Interview Tips
- Try to meet with the client alone – and in person;
- Have at least one follow-up meeting with the client to see if answers to questions are consistent;
- Probe into ‘why’ – certain decisions are being made;
- Don’t be afraid to bluntly ask “do you feel pressured by anyone to meet with me or to make this document”? or “Are you afraid of anyone”?
- Be sure to explain solicitor/client privilege and the ‘safe’ space you provide to them as your client;
Elder abuse is a pressing and growing issue that demands the attention and concern necessary to protect our vulnerable aging population. An increase in awareness and education is needed by those in frequent contact with older people so that they may identify the critical signs of abuse so as not to assist and play into the demands of the abuser.
While we as solicitors may not have the means and authority to make a police report given our duties of solicitor-client privilege, we can and should be proactive in how we approach files where a victim of elder abuse is instructing us. We do have a positive obligation to confirm our client’s instructions and to satisfy ourselves that they indeed reflect the clients true, individual, and voluntary wishes – and when in doubt we can respectfully decline to act. Granted, many of these files will simply end up in another lawyer’s office in any event, but putting roadblocks in the face of elder abusers may arguably at least delay their ultimate plans. There are no easy solutions for lawyers in this predicament given the tricky balance between doing what we are instructed to do and our intuition which may steer us away from so doing.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.