Elder Abuse - What can you do? | Senior | TLR Law

Elder Abuse

Elder Abuse

I briefly wrote about elder abuse in the past here, in the context of someone loosing his or her legal capacity. I’ve also discussed the issues around financial abuse here. However, elder abuse is not restricted to seniors who have already lost capacity. Seniors can become vulnerable while still legally capable of making decisions. The law reform commission of Manitoba drafted a report in 1999. While it’s getting old, some of the statistics are alarming. The Commission stated:

“Generally speaking, estimates of prevalence in the literature range from 1% to 10% of older adults, although 4% is the figure most often cited”.

According to the Commission, the statistics are similar in the United-States.

Perpetrators

Those who perpetrate abuse on elders are even more concerning than the prevalence of abuse in older adults. According to the Commission, The National Elder Abuse Incidence Study concluded that in 90% of the cases reviewed, spouses or relatives perpetrated the abuse, the majority of those being adult children. Women suffered the most from the abuse. The Commission cited the study,

“Women made up 58% of the over-60 population but accounted for 60% to 76% of victims in all forms of maltreatment except abandonment, according to Adult Protective Services data; and 67% to 92% according to (the study’s) data”.

The Commission went on to review the different provincial laws across the country, and how those provinces deal with elder abuse. The comparisons are now likely out of date, considering the report is 20 years old today. I haven’t reviewed any of the other province’s regimes, but I suspect that those cited have evolved.

Proposed Manitoba Solution

Finally, the report focused on Manitoba legislation, and recommended changes to better protect vulnerable individuals who maintain their legal capacity to make decisions. The Commission focused its recommendations on amendments to the The Domestic Violence and Stalking Act. The Commission advocated broadening the protection of the law beyond spouses, family who lived together, or intimate relationships to include:

“persons with easy and frequent access to another person’s household, regardless of whether the persons are related to one another by blood, marriage, or shared responsibility for the care of children, or whether they reside or have resided with one another.”

This would provide protection from a much broader range of individuals, thus providing better protection to a broader range of potential victims.

Protection Orders

Under the current law, when a person feels threatened, that person can apply for a protection order. The law allows the person to do so in person or through a lawyer. A peace officer may also apply. Compared to other provinces, this limits the ability of the person to apply. In order to do so, an abused elderly person would have to attend the court house in person; find a lawyer to represent her (or him); or call the police. Imagine a scenario where a son emotionally abused his mother through neglect. Would that woman have the ability to leave the home? If so, would she feel comfortable enough hiring a lawyer? Would she call the police and potentially have her son arrested?

Our current system places the entire onus on the elderly person to engage the system. In the scenario I just mentioned, the mother is unlikely to proceed. She would simply become another statistic. The Commission proposed a broader range of persons, including designated persons such as social workers, or friends or relatives to apply on behalf of vulnerable persons.

Police entry

The Commission was also concerned that the current law does not provide police with a mechanism to forcibly enter into a home if the police suspect someone is abusing a vulnerable person. The police can enter into a premises by force if they believe someone is committing a criminal offence, but as the Commission pointed out, not all elder abuse falls within the ambit of the Criminal Code.

The Commission recommended that the police could enter a home if they obtain a warrant. The reviewing judge or justice of the peace could issue a warrant under this law, permitting the police to enter into a home where the abuse does not amount to a criminal offence.

The Commission went on to make a number of recommendations. Unfortunately, the legislative assembly has yet to implement any changes. Until they do, vulnerable elderly persons remain at risk.

What can concerned relatives or friends do?

If you have access to the individual in question, you can offer to act as Attorney under a Power of Attorney. I’ve discussed Powers of Attorney documents here. Provided the individual is not overpowered by the “abuser’s” influence, that vulnerable person could meet with a lawyer to prepare and execute a Power of Attorney, name someone else who could then monitor more closely and intervene when necessary.

Concerned relatives could also move the vulnerable person to a location further away from the “abuser”. Although this is not always possible especially when the vulnerable person suffers from mobility issues or lives on a fixed income.

Unfortunately, until we start seeing legislative changes, the potential for abuse continues (that said, we’ll never be able to rid ourselves completely of abuse). Vulnerable persons are not currently well protected. But, with new laws comes new problems and often unforeseen ones. I don’t have a crystal ball, so it’s hard to foresee the full impact. That being said, I believe any changes will be better than the current situation.

Philippe Richer is President of TLR Law Group. TLR has been located in the St. Boniface neighbourhood, in Winnipeg, since 1996. The office serves the middle class and small business within the province. With a focus on estates, wills, real estate, and corporate law, he leads his team in providing accessible legal services. Philippe also authored the business law course for the Knowledge Bureau and instructed the français juridique class at the faculty of Law at the University of Manitoba.



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