Powers of Attorney – Avoiding Abuse

As our population ages, living longer but perhaps not always better, there is a growing incidence of what can only be termed “elder abuse”. The term abuse conjures up bruises and broken bones, but elder abuse can be much more subtle. It may be verbal and emotional invectives. It may involve isolating the adult from family, friends and support services. It may consist of threats or coercion. It may be converting the adult’s personal or real property. Or it may be all of the above.

Lawyers are increasingly being asked what remedies the law can provide to adults to stop the abuse, or what can be done to remedy the results of the abuse after the adult has died. This article will discuss those remedies. The person inflicting the abuse will be referred to as an “abuser”. The term has harsh connotations which may not always be justified in the context of particular circumstances, but there is no other word which defines as clearly the relationship between the adult and the person who abuses the adult.

What is Abuse?

In 2002, following consultation with the International Network for the Prevention of Elder Abuse to develop a global strategy to address elder abuse, the World Health Organization defined abuse and neglect of older adults as:

“…single or repeated acts, or lack of appropriate action, occurring within a relationship where there is an expectation of trust, which causes harm or distress to an older person.”

This definition, while broad, encompasses the concepts of both abuse and neglect, and identifies that abuse is not limited to physical violence. These concepts have been recognized in our legislation in British Columbia. Section 1 of the Adult Guardianship Act of British Columbia (introduced in 1993 and proclaimed in 2000) (the “AGA”) defines abuse as:

“…the deliberate mistreatment of an adult that causes the adult

• (a) physical, mental or emotional harm, or
• (b) damage to or loss of assets, and includes intimidation, humiliation, physical assault, sexual assault, over medication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors…”

The AGA also defines neglect and self neglect:

“neglect” means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage to or loss of assets, and includes self neglect;

“self-neglect” means any failure of an adult to take care of himself or herself that causes, or is reasonably likely to cause within a short period of time, serious physical or mental harm or substantial damage to or loss of assets, and includes

• (a) living in grossly unsanitary conditions, (b) suffering from an untreated illness, disease or injury,
• (c) suffering from malnutrition to such an extent that, without intervention, the adult’s physical or mental health is likely to be severely impaired,
• (d) creating a hazardous situation that will likely cause serious physical harm to the adult or others or cause substantial damage to or loss of assets, and
• (e) suffering from an illness, disease or injury that results in the adult dealing with his or her assets in a manner that is likely to cause substantial damage to or loss of the assets…”

This legislative recognition of abuse and neglect has potentially far reaching consequences for societal mores. It may also have significant impact on how lawyers, particularly those practicing in the area of wills and trusts, can assist their more vulnerable (often but not always older) clients. Where there are concerns about an adult’s living conditions, possible undue influence of family, friends or care givers, or questions about financial abuse, there is now a tool to assist both the lawyer and the client (whether that client is the adult or a concerned third party).

Stopping Abuse

Abuse can arise in many circumstances. A care giver may become frustrated with the demands or needs of the cared for adult. A member of the family may have financial pressures which can be eased by “borrowing” from the adult’s resources (either with persuasion or, where the adult is incapacitated, under the innocent belief that the adult “will never need it”). Such forms of abuse can often be stopped with informal intervention and education. However, there are more nefarious forms of abuse, where the abuser is a predator. The indicia of such forms of abuse can include: control of the adult’s finances; control of access to the adult; isolation of the adult; alienation of the adult’s previous support system; ingratiation to the adult; and threats and intimidation of those trying to help.

Where the abuser is not prepared to recognize that his or her conduct is unacceptable, or where the abuser is a true predator, an abusive situation can often be stopped by removing the financial incentive. If the abuser can no longer profit or benefit from the abuse, he or she may be disinclined to continue the abuse.

The Traditional Options

There are a number of options available to remove the financial incentive. Ideally, where the adult is capable and inclined, he or she can appoint a neutral third party to act as attorney or representative to assist in decision making. That person can then work with the adult and financial institutions to manage access by the adult to his or her funds. The adult may even be prepared to settle a trust, naming a third party as trustee to manage the funds.

Unfortunately, the very nature of the abusive situation has either resulted in the abuser being appointed as the attorney or representative, or renders the possibility of appointing a neutral third party unlikely. In other words, the abuser is already in control of the finances.

Where the adult has previously appointed an attorney or representative, that person may be able to prevent or at least reduce the ability of the abuser to access the adult’s funds. Unfortunately, because of the nature of abuse, the adult may be inclined to (or may be induced to) revoke the power of attorney and appoint the abuser instead.

Where the adult is clearly not capable, a concerned relative or friend can take the more traditional route of applying for an order of committeeship. (This may, however, not be a viable option, if there is no one prepared to make such an application, if the adult is not clearly incapable, or if the abuse is too serious to await the lengthy delays inherent in making the application.)

There are, of course, situations where the abuse will continue notwithstanding the appointment of a committee. In such cases, the committee can seek an order restraining the abuser from any contact with the adult, using the parents patriae jurisdiction of the court.

Despite all these remedies, situations will arise in which the vulnerable adult still suffers abuse. It is not uncommon to find an abuser with apparently altruistic motivations – the belief (or at least, the expressed belief) that the adult is not incapable and should not be subject to the decision making of a third party, or that the abuser is in a better position to care for the adult than anyone else. Then again, the financial incentive may be deferred, for example, where the abuser has been able to persuade the vulnerable adult to make a will in favour of the abuser. In such circumstances, alternate solutions must be explored.

The New Options

Consideration may be given to involving the Public Guardian and Trustee (“PGT”). Section 17 of the Public Guardian and Trustee Act gives the PGT wide powers to investigate substitute decision makers (attorneys, representatives, and committees), if the PGT has reason to believe that the interest of the assets of the adult may be at risk or that the attorney, representative or decision maker or guardian has failed to comply with his or her duties. Subsection 17(1)(a)(iii) refers specifically to an adult who does not have a decision maker or guardian but who is apparently abused or neglected, as defined in the AGA.

Part 3 of the AGA provides a specific structure for the reporting, investigation and prevention of abuse, neglect and self neglect. Section 46 of the AGA contemplates the reporting of possible abuse or neglect to a “designated agency”. Regulation 19/2002 identifies the various health authorities of British Columbia as designated agencies. Section 46 stipulates that the person making the report is protected from identification and liability unless the report was made “falsely and maliciously”.

The designated agency will investigate by interviewing, if possible: the adult; his or her spouse; near relatives; friends; health care providers; and any person managing the adult’s financial affairs, business or assets. The designated agency may apply for a court order to forcibly enter any residence to interview the adult.

If the investigation determines that the adult is in need of support and assistance, an array of services can be recommended, and the designated agency can apply to court for an interim order restraining an abuser from having any contact with the adult.

The adult may reject a support and assistance plan, as one of the guiding principles of the Act is that adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters. However, if the adult is found to be incapable (as determined by a separate medical assessment), then the designated agency can apply for a court order approving a care and assistance plan, to ensure that he or she is protected. Again, where there is an abusive situation, the designated agency can seek a permanent restraining order at this time.

While the provisions of the AGA provide a framework for protecting a vulnerable adult, there are some procedural challenges which can be faced. Relief under the AGA must be made in the Provincial Court of British Columbia, and the procedural safeguards in the AGA and the Rules promulgated to govern the applications, are onerous. While the wisdom of due process cannot be questioned, it can be daunting to manoeuver through the sometimes cumbersome steps while a vulnerable adult continues to suffer abuse. For the designated agencies, there is also the very real challenge of budgeting for such applications. There is no provision is the AGA for costs or reimbursement from the adult’s assets.

Post Mortem: Remedying The Consequences of Abuse

Where the abuse of a vulnerable adult goes unknown or unchecked during the adult’s lifetime, it may be unearthed after death, particularly if the abuse was financial in nature. The adult’s testamentary beneficiaries may find that the estate is seriously depleted, or that they are no longer beneficiaries at all. There is no one solution for recovering assets of the deceased adult, as the facts of each case will determine what remedy can be utilized. There are, however, a number of avenues that can be explored to recover assets of the adult.

Where the abuser has been successful in persuading the adult to make a will, an action to prove the will in solemn form can be brought by beneficiaries of prior wills, or intestate heirs. Where, however, there are no assets passing under a will because the abuser has been successful in converting the adult’s assets prior to death, there may be some difficulty in pursuing legal action to recover the assets.

The preliminary question which should be asked is whether the person seeking to recover assets has standing to make a claim. In a paper prepared for a Continuing Legal Education course in 2003, the writer discussed the current state of the law on this issue, which suggests that only an executor or administrator can properly prosecute an action to recover the deceased’s assets.

Since delivering that paper, the writer has heard anecdotal evidence, and read judgments, which suggest that the court, either because the law was not brought to its attention or because of the nature of the claim, entertained claims by frustrated beneficiaries against the abuser. It may be that the proper analysis is that a beneficiary is always entitled to recover trust property wrongfully converted by a trustee, but there does not appear to be any authority specifically adopting that analysis, as yet.

Where the proposed plaintiff is the executor, or has standing to be appointed as administrator of the estate, he or she is clearly entitled to commence an action to recover the deceased’s adult’s assets. It may be as simple as demanding an accounting and tracing of the adult’s assets, where the abuser was an attorney appointed under a power of attorney. More likely, it will be necessary to seek an order that the abuser holds the assets by way of resulting trust. A more challenging claim is to seek an order setting aside any transfers or gifts made on the basis of undue influence. A recent example of a success claim of this nature is the decision of Tribe v Farrell, 2003 BCSC 1758.

The facts in that decision reflect what the writer would consider a common scenario of financial abuse. A widower of 83 placed an advertisement in the paper seeking someone to assist him with “light housekeeping” in exchange for free room and board. The defendant, a 37 year old woman, responded and was “hired”. By the widower’s death five years later, he had transferred his vehicle to the defendant, his savings to a joint account with the defendant, and signed a will leaving his house and its contents to her. The defendant’s position was that her relationship with the widower was a loving one and that he wanted her, rather than the widower’s son, to have the bulk of his assets.

The evidence at trial showed that the defendant did provide care for the widower. There was no indication of physical abuse or neglect. Nevertheless, the evidence clearly showed many of the indicia of an abusive relationship. The defendant:

Insisted that he not sign any documents without reviewing them with her;
Threatened to leave him;
Suggested to him that his son would “put him in a home” if she left;
Took him to numerous lawyers and notaries to have a new will drafted;
Had him revoke a power of attorney in favour of his son;
Had him open a joint account with her, and transfer his money to it, so that the son would “not be able to get his hands on it”.

If the son had made a complaint to a designated agency under the AGA while his father was still alive, the defendant’s actions might well have been curtailed. The abuse occurred, unfortunately, before the AGA was proclaimed and implemented. Fortunately, the abuse was remedied by the trial judge in his judgment which set aside both the inter vivos transfer and the will on the basis of undue influence.

An interesting aspect of this case which did not develop into a discussion in the reasons for judgment was the defendant’s proposed strategy of marrying the widower. Based upon legal advice she had obtained, she decided not to pursue this strategy. Where such a strategy is pursued, the challenge of the frustrated beneficiary can be twofold. First, even if a will made subsequent to the marriage is set aside, the marriage invalidates any will made before the marriage, leaving the surviving spouse with the spouse’s share of the intestate’s estate. Second, where there is a valid will, the surviving spouse’s entitlement under the Wills Variation Act may pose a significant impediment to recovering the deceased’s assets. In other words, even if the assets are recovered in a resulting trust or undue influence action, the “spouse” may still be entitled to a share of them under a Wills Variation Act claim.

The most effective way of overcoming these challenges is to have the marriage set aside. Unfortunately, the capacity to marry is very low. The party must merely understand the nature and responsibilities of the relationship. The 1998 decision of MJ Cullity of the Ontario Superior Court in Banton v Banton (1998) 164 DLR (4th) 176 was a particularly disheartening example of that principle. In it, the marriage of an infirm and impotent 88 year old man to a 31 year old woman who worked in the care facility where he lived was found to be valid.

It is a truism, of course, that each case is determined on its own facts, and a more recent decision from Ontario gives a fresh perspective on the challenge of setting aside a marriage. In Feng v Sung Estate [2003] OJ 1593 (appeal dismissed: [2004] OJ 4496), a very ill 70 year old widower married a 47 year old care giver approximately 6 weeks before his death. The trial judge concluded that the care giver pressured the widower into marrying her by telling him that she would abandon him and not take care of him. The marriage was found void ab initio on the basis that the widower was unduly influenced and coerced into marriage. An alternate finding was that the widower did not have the capacity to marry. (The argument and evidence that the widower was impotent was not directly addressed by the trial judge.)

The trial judge recognized the vulnerability of the widower, and the care giver’s callous use of that vulnerability. Although the word “abusive” was not used by the trial judge, the facts clearly show that the indicia of abuse was present. Indeed, the presumption of undue influence is really a presumption that a vulnerable adult is an abused adult, when he or she transfers assets without consideration.

Conclusion

The incidence of abuse of vulnerable adults is likely to rise as the number of frail or elderly adults increases. It is reassuring to know that the law offers some protection for such adults and their assets, both during the adult’s lifetime and post mortem. However, the best protection against abuse is a strong support network for such adults. If you are interested in learning more about elder abuse and how it can be prevent, contact:

The BC Coalition to Eliminate Abuse of Seniors (604 – 437-1940): www.bcceas.ca

The Canadian Network for the Prevention of Elder Abuse: www.cnpea.ca

ENDNOTES

• World Health Organization and International Network for the Prevention of Elder Abuse (2002), available on line at: http://www.who.int/hpr/ageing/elderabuse.htm
• RSBC 1996, c. 6
• As described Guiseppe Scaletta, the coordinator of Elder Outreach Services, Vancouver Island Health Authority.
  Even where a committeeship of the estate and person have been made, the adult can still be abused. A recent case in which the writer was retained involved an elderly adult abused by a much younger person. The latter moved in with the adult, sold the adult’s personal possessions, convinced the committee to purchase items for the adult which were then sold, used the adult’s free transit service to travel with the adult for the person’s own benefit, and prevented care givers and relatives from accessing the adult. The court granted a restraining order.
• RSBC 1996 c. 383
• Supra, note 2, s. 48.
• Supra, note 2, s 49.
• Supra, note 2, s. 51.
• Supra, note 2, s. 2.
• Supra, note 2, s. 54.

“That Pesky Subsequent Relationship: Challenging the Plan”, Estate Litigation, CLE 2003. The decision of Master Horn in Hayman v Gordon, 2001 BCSC 175, is the authority discussed in that paper. It contains an excellent review of the law in this area, and follows the Alberta Court of Appeal in Joncas et. al. v Pennock (1959), 17 D.L.R. (2d) 147 and the B.C.S.C. in Cameron Estate v Harder, [1995] B.C.J. No. 177.

See Carman Theriault’s paper on Capacity Issues, Adult Guardianship – New Legislation, CLE, February 2000.

It should be noted that the Court of Appeal relied upon the trial judge’s alternate finding that the widower did not have the capacity to marry, and accordingly did not address the findings of duress and undue influence.