Capacity and Elder Abuse

The Prevalence of Elder Abuse

Canada’s population is aging. As of mid-2023, about 7.6 million Canadians were aged 65 and older, or almost one-fifth of the total population. This number is only set to increase. Unfortunately, certain segments of the senior population are at higher risk of experiencing abuse.¹ This includes adults who are socially isolated, cognitively impaired, physically vulnerable, living in institutional settings, or otherwise dependent on others for care.²

Against this demographic backdrop, abuse and issues of capacity are increasingly significant, making it essential to understand how the law responds.

Forms of Elder Abuse

Elder abuse is a pervasive issue in Canada³ and refers to any action by someone in a relationship of trust which causes harm or distress to an elderly person.⁴ Three key areas of concern affecting seniors include financial crime by strangers, crime and abuse by relatives and caregivers, and crime and abuse in institutional settings.⁵

There are too many cases where family members or friends in positions of trust take advantage of an elderly adult who relies on them. In the civil context, abusers often exploit an adult's vulnerability to manipulate their decisions—such as altering a will, changing a power of attorney, or persuading the adult to make financial decisions that are not in the adult's best interest.⁶

In Wiseman v. Perrey, 2012 BCSC 1681, the Court determined the deceased lacked testamentary capacity when she executed a will and several related documents in 2008 (“the 2008 Will”) while hospitalized with terminal ovarian cancer. The 2008 Will dramatically changed her previous estate plan by giving her entire estate to her two sons rather than providing a life interest in the matrimonial home to her husband of 37 years.

The Court found that, while she was gravely ill, the deceased’s sons orchestrated a scheme involving the creation of the 2008 Will, transfers of property, and even financial reorganization to minimize their potential tax burden. In the result, the Court declared the 2008 Will, power of attorney, and all related transfers void.

Similarly, in Yu (Re), 2021 BCSC 1793, at issue was whether the adult’s children misused an enduring power of attorney. Despite clear instruction to the contrary in her power of attorney, after the sale of Ms. Yu’s property, the proceeds were distributed as gifts to all her children. Unexplained withdrawals were made from Ms. Yu’s bank account, and her property was commingled with the assets of her attorney’s company. The Court did not find that elder abuse occurred but found that the attorneys had failed as fiduciaries for Ms. Yu. Ultimately, Ms. Yu was found incapable, and the Public Guardian and Trustee (“PGT”) was appointed as Ms. Yu’s committee.

These cases highlight the vulnerability of older adults in Canada. While issues of elder abuse often arise in the civil context, an abuser’s conduct can constitute a crime. Courts in the criminal context recognize the deplorable nature of elder abuse:

Caregivers of the elderly, particularly those suffering from Alzheimer's disease and dementia, owe tremendous power. That power cannot be abused.

Caregivers must know that if they abuse their position of trust and authority over vulnerable individuals, the court will deal with them harshly. Caregivers often work in environments where witnesses are not present. As such, they must deal with those entrusted to their care in the utmost good faith.

In my view, the only way to ensure that this bond of trust remains intact is for the courts to determine that caregivers who breach that trust will be sent to jail. In my view, incarceration is the only reasonable alternative to ensure a safe and secure environment for those extremely vulnerable individuals who are at the mercy of their caregivers.

What can you do?

If an individual witnesses elder abuse, there are a few options available:

• Committeeship Orders: A committeeship is a legal arrangement where, under the Patients Property Act, a court appoints a person or institution as “committee” to manage the financial and/or personal and healthcare needs of the individual. If a committeeship is granted, it ousts any existing power of attorney and representation agreements.
• Make a report to a designated agency (regional health authorities and Community Living BC): Under B.C.’s Adult Guardianship Act, a designated agency can investigate allegations of abuse, which can include an assessment of the adult’s incapability and may include the appointment of a statutory property guardian and/or a support and assistance plan.
• Make a report to the Public Guardian and Trustee: If an adult is no longer capable of managing their financial and legal affairs and their assets are at imminent risk, you can contact the Public Guardian and Trustee for assistance. The PGT can investigate concerns, take protective steps to protect assets, and, when necessary, seek legal intervention to safeguard the adult’s financial well-being.
• Senior Abuse Information Line (“SAIL”): Concerned individuals can use the SAIL hotline to discuss situations that may constitute abuse or to seek information.
• Call the police: If there is imminent harm or you believe a crime is occurring, call the police.

Canada’s population is aging. These are our parents, friends, relatives, and neighbours. We must act proactively to reduce elder abuse and ensure the golden years remain golden.

1. Statistics Canada, Violence against seniors and their perceptions of safety in Canada (Ottawa: SC, 2022) online [Violence Against Seniors].
2. Ibid.
3. Government of Canada, “Crime and Abuse Against Seniors: A Review of the Research Literature With Special Reference to the Canadian Situation” (8 December 2021), online [Crime and Abuse Against Seniors]
4. Government of Canada, “Facts on the Abuse of Seniors,” online.
5. Crime and Abuse Against Seniors.
6. House of Commons Canada, Elder Abuse: Identifying The Issue And Combating All Types Of Abuse (2021) (Chair: Iqra Khaled) at 11.