November 1, 2007
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The Oxford Dictionary of Current English defines abuse in three ways: firstly, the wrong use of something; secondly, cruel and violent treatment; and thirdly, insulting and offensive language. In discussions about elder abuse I have found that, unfortunately, all three definitions apply in one way or another, and all have their genesis in the new family paradigm.

It seems that grandparents no longer live in their children’s homes any more. This is not really a problem unless the grandparents want to live with their children or if the grandparents need some form of care or assistance. Many seniors today are financially independent and have been accumulating significant wealth through the use of properly funded institutional pensions, registered retirement savings plans and inflated real estate value. These same seniors are also living longer, thus delaying the transition of this wealth to the next generation. In short, today’s seniors can often look after themselves financially or afford to obtain the care they need. It is this independence that, ironically, sets the stage for various forms of abuse, both personal and financial, from members of their own family.

I have confirmed with various representatives of the office of the Ontario Public Guardian and Trustee that elder abuse by family members is a widespread and growing problem. The characteristics of this form of abuse appear time and again and can be roughly classified as follows:

Familial abuse is usually driven by the need for power as well as the greed for money. Often the adult child who appears in this scenario has not been successful in life. These children move into the family home later in life with a stated desire to help the “elderly parent manage.” Many seniors are capable of looking after themselves in their own homes but are worn down by this intrusion and find themselves letting these children intervene more and more in their daily lives. Sometimes this is driven by the loneliness of the parent and sometimes by sympathy for the unsuccessful underachiever who has moved in with them or it is a combination of both these factors that can lead to an abusive relationship.

In the ordinary case, it often starts with the adult child running errands, helping with chores, going to get groceries and prescriptions and occasionally some cash at the bank. For “convenience” sake, this adult child will be given cheques or cash to help them through a sudden or unforeseen monetary deficit. The child then suggests that it would be more convenient if the parent provided the PIN of the parent’s bank account so that the ATM could be used from time to time for emergencies. Thus it begins, sometimes with the complete cooperation of the parent and sometimes with the absolutely honest intent of the child. Sometimes the elderly parent is a little more savvy about the situation and refuses to provide the child with direct access to cheques or bank accounts and thus the parent maintains independent control of his or her resources. This will be the senior who is still very capable and not vulnerable to manipulation as a result of failing health.

Nevertheless, if these initiatives fail to yield any result for the adult child apparently ensconced in the parent’s home, the process of manipulation will begin to evoke more sympathy for the child. Conversations such as the following often take place: “you really should help me out. My brothers have lots of money, and after all, I am the one who is looking after you;” or “it’s not my fault I lost my job. Alcoholism is a disease you know;” or “the doctor says the reason I am depressed is because of the way I was raised.”

If this kind of manipulation does not work, then the heat is turned up by isolating the parent from other members of the family. Telephone calls to the parent are either blocked or intercepted. Visitors are discouraged because; “Mother isn’t feeling well” or worse, “mother didn’t appreciate what you said to her.” The final isolation is invoked when the other children are refused access because they are not helping as much or have not been as attentive to the parent’s needs, which the now-resident child has been able to provide. The adult child relates the story to the parent as follows:“I guess your friends are no longer interested in you. They seem to be too busy to call,” or “now you see how my brothers and sisters really feel about you. They never call.”

In this reversal of the parent/child role, a feeling of helplessness overcomes the parent, who surrenders control of his or her affairs to the child. In the worst cases, which fortunately are still relatively rare, physical threats and abuse are brought to bear upon the elderly parent to ensure cooperation.

The patterns of abuse may take several years to evolve. They may even become legalized in the form of documentation, such as the setting up of joint bank accounts or the obtaining and using a power of attorney for property or personal care. Sometimes there is coercion in obtaining these documents and sometimes they are obtained in a perfectly innocent and appropriate manner. In this context, the abuse is not usually manifested until the elderly parent becomes incapable and thus helpless. When all the legal steps have been taken to hand over the power to manage the affairs of the elderly parent, it is just a matter of time before the opportunity for financial abuse can begin. Even if the elderly parent remains capable, the reporting of this kind of abuse from the parent is all too rare. This flows from their embarrassment in having failed to be vigilant in managing their own affairs or from fears of further isolation from family and friends, or ultimately from the fear of being institutionalized.

Lawyers, doctors and bankers become unwitting participants in the process by validating the paperwork necessary for this form of financial abuse to take place. Lawyers have developed alarm buttons to alert them to the potential for abuse. Flags go up in the mind of the lawyer when the elderly parent is driven to the office appointment by the adult child, who is likely to have chosen the lawyer and who insists on being present for the giving of instructions by the elder person. Bankers (now more than ever) are becoming cautious regarding the creation of joint bank accounts between parent and child. Doctors are asking more questions when unusual bruising appears without a satisfactory explanation from their elderly patients.

As a family member or an elderly parent, you need to be alert to these danger signs to protect against abuse. It is important for all members of the elderly parent’s family to maintain an open line of communication with the parent to facilitate the exposure of any concerns regarding abuse.

It is important to know that abuse of a power of attorney is a criminal offense. Unfortunately, it seldom pursued because of the wish of the parent to avoid criminal consequences for a family member. By statute, the holder of a power of attorney is not allowed to use the document for personal benefit without the informed knowledge and consent of the donor of the power. Taking money through the use of a power of attorney is theft any way you look at it, but some complainants experience frustration when reporting to police authorities who tell them to deal with it in the civil courts.

While the criminal sanctions exist, it is also true that there are civil remedies that are available to remedy a breach of trust by an attorney. These remedies will be employed to force repayment of monies acquired improperly by the use of a power of attorney. The first step involves seeking a court order to take away the abuser’s power to regulate the parent’s affairs. Ancillary to that is the removal of the abuser from the elder’s home. If monies have been lost and the elderly parent is still capable of changing his or her Will, then some recovery is possible by the removal of any bequest to the dishonest child under the terms of a revised Will. This may not have any immediate benefit but at least it will stop the bleeding! As a family member, one ought to be alert to the signs of manipulation: the fear-mongering, the isolation and the creation of new legal documents, which will effectively deprive the senior of power over their own affairs long before they wish to surrender it.

Remember that when you appoint an attorney to manage your affairs, that attorney must keep his or her property separate from yours and keep accounts of any dealings with your property. It is required by law that an attorney report to the person who gave the power in the first place. Regrettably, where the elder person has lost capacity, it is much more difficult to track losses that have already been incurred. Any power of attorney can be revoked by the donor of the power if the donor is still capable. It can also be terminated by a court application brought by any interested person. A capable donor can create a new power of attorney but in the absence of capacity a court can appoint a guardian for an incapable donor. Sometimes it is useful to appoint two attorneys or guardians to act jointly so that they can keep an eye on each other in accessing and deploying the books and records of the incapable person.

There are thousands of adult children pressed into service as attorneys who act with the utmost probity and lawyers are often given to “doom and gloom” speeches but the scenarios set out in this article are real and are taken from reported cases or files. The longer the elderly extend their life expectancy, the longer the heirs will be kept waiting for their ultimate, and now shrinking, rewards, and so this story of abuse begins.

John Johnson is a partner with the law firm of Nelligan O’Brien Payne LLP (www.nelligan.ca), with offices in Ottawa, Kingston, Vankleek Hill and Alexandria.

[This article was originally published in the November 2007 issue of Fifty-Five Plus Magazine.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.