Financial Abuse and the Law
Another important form of abuse is that of financial abuse. Older Canadians are frequently an attractive target for financial exploitation, as they often have paid off their mortgages, have higher savings and lower expenses as they often no longer have child-rearing expenses. At the same time, the effects of financial abuse can also devastate older Canadians, who usually cannot expect a great deal of future income. This situation often occurs when a guardian of a mentally incapable individual misappropriates a ward’s assets. Although adult guardianship laws can authorize the responsible agency to freeze accounts, redirect income and halt the disposition of property, there is a practical difficulty with relying on them as one must first recognize the abuse, and incapable individuals are unlikely to be able to do so. Unless someone suspects or finds and reports the agency, the abuse will not be discovered.
Often, in the anticipation of possible future incapacity, individuals will sign trust agreements or power of attorney agreements. Although these financial agreements are effective for preventing abuse against third parties, they do not prevent the fiduciary in these situations from being the financial abuser. Older Canadians could also be coerced into signing a power of attorney. Although, one could theoretically be liable under s. 311 (theft by someone holding a power of attorney) of the Criminal Code, this first requires detection, and the provision tends to be overlooked, as abuse of power of attorney is generally considered to be a civil, rather than a criminal matter. As well, the requirement that intention be proven is often a stumbling block to anyone attempting to use the provision.
A very recent high profile case has recently placed the spotlight on this very issue, when Tony Marshall, the son of the late Brooke Astor, the American novelist and philanthropist, was accused of abusing his power of attorney over a number of years, extracting a great deal of money from his late mother’s estate. It is important to note that Marhsall’s attorney, Francis Morrissey has also been implicated and charged. Indeed, lawyers, accountants, financial advisers and doctors are just some of the professional groups that include enough bad apples who have taken advantage of the trust seniors have placed in them. Again, it is a group of few close friends who have brought to light the misappropriation of funds by Mr. Marshall. Unless there is someone to detect elder abuse in such a situation, the abuser may be free to continue exploiting the victim.
Where do we go from here?
This begs the question as to whether the law is the beginning or the end of social change? It would seem from the current state of the law that it is to follow social change. Then, it is up to society to decide that the elder abuse is not acceptable and that the law should respond to its demands by working to ensure that we live in a society in which elder abuse is faced with more legal barriers, and accountability is demanded of those in a position to abuse.
