Elder abuse, Undue influence

best practicesFraser Valley Estate Planning Council

Sept 17th , 2013Mary-Jane Wilson

Acts of ViolenceForced sexual contactemotional and psychological abuseNeglectAbandonment Illegal or improper use of an older person’s funds, property or assets

What is Elder Abuse?

This includes: forging the older person’s signature Stealing money or possessions, Tricking the older person into signing

documents that transfer funds, property or assets

using a person’s money or property without permission or in a fraudulent manner

Illegal or improper use of the older persons funds or property Financial abuse

Typically involves a family member or another person whom the adult trusts

Financial abuse can occur when a family member or friend takes over decisions and control of the older adult’s money

Family member or friend controls the money and misuses the money or power of attorney

Financial Abuse

Seems highest when their adult children live with the older person

Social isolation Caregivers and family members who live

with an older person have an opportunity to abuse and often attempt to isolate the older person from others to prevent the abuse from being discovered

Risk of Elder Abuse

Signs of financial exploitation include: sudden changes in a bank account or

banking practice, such as unexplained withdrawals of large amounts of money, additional names on older person’s bank account

Abrupt changes in a will or other financial document

Disappearance of funds or valuable possessions

Risk of Elder Abuse

Unpaid bills or substandard care despite the availability of funds

Evidence of the older person’s signature being forged

Sudden appearance of previously uninvolved relatives

Risk of Elder Abuse

The following may make the older person more dependant on others and possibly increase the opportunity for undue influence:

Impaired vision, hearing, mobility and speech

Physical characteristics that may indicate illness

Physical, Psychological, behavioral characteristics of the older person

Resulting in dependence on another person to meet physical, emotional, financial and other needs

Relatives who keep others away from the older person or relocate that person to a different community where the older person has fewer or no connections

Isolation

Unusual gifts in the will to a recent or casual acquaintance

Wills instructions from a third party that appear to benefit the third party

Beneficiary designations from a third party that appear to benefit the third party

Circumstances relating to the making of the will and terms of the Will

Is a legal doctrine and a form of financial abuse

Operates in one of the following ways:

Exploiting dependencies Abusing relationships of trust and

confidence Emotional manipulation Isolating the victim

Undue influence

Victim often elderly Also impaired individual of all ages can

result in increased susceptibility to pressure and manipulation

Impaired mental function can result from many causes including injury, mental disorder, developmental disorder or substance abuse

Undue influence

Controlling the information flow to the victim and misinformation

E.g. the influencer may poison the mind of the victim by supplying false information regarding the character or the intentions of the family members

When this is combined with isolation of the victim to cut off other sources of information, the influencer is in an ideal position to manipulate the victim

Undue influence common tactics

Influence in the older person’s family:

◦ Being overly helpful◦ Insisting on being present when the wills

instructions are being taken◦ Overly controlling attitude towards the older

person noted by the practioner

Characteristics of influence in the older person’s family

Same criteria applies when making testamentary documents like:

RRSP/RRIF’s TFSA’s Life insurance designations Joint bank accounts or investments

Financial Planner, Investment Adviser or Banker

A caregiver or member of the family who benefits disproportionately

An overly helpful neighbour or friend Perception that a person or friend

professing emotional attachment to the older person is actually pursuing the older person for material benefit

a “suitor” who is significantly younger that the older adult

Red Flags of Undue Influence

Body language Mannerisms of the older adult indicates

fear, anxiety, insecurity, reticence, evasiveness or embarrassment

A person (potential influencer) who is off putting or difficult to deal with accompanies the older person to the appointment with the lawyer, financial adviser, banker

“Gut Feeling” that influence is going on

Basic rule: interview the older person alone If instructions taken through another source,

always confirm directly with the older person in a thorough and comprehensive interview conducted in private

Relative should not serve as an interpreter unless this is completely unavoidable

Explain why the client must be interviewed alone

Screening for potential undue influence

4 “C’s client identification

must be absolutely clear for whom you are acting Conflict of interest

it is necessary to avoid a joint retainer or the appearance of a joint retainer

confidentiality Communication with the client must be confidential

Screening for potential undue influence

Competency Speaking with the client privately and unassisted

allows you to evaluate the capacity to give instructions and form an opinion as to whether there is any question of capacity

Screening for potential undue influence

Ask non leading questions to determine what factors are operating on the older person’s mind

Ask “open ended” questions “How did you decide to divide your estate

this way?” “What was important to you in deciding to

divide your property this way?” “What led you to the decision to make

{name} your executor

If Red Flags are Present

Explore whether the older person is in a relationship of dependency, domination or special confidence or trust that could provide an opportunity for undue influence

E.g. Do you live alone? With family? With a care giver? a friend?

Do you have to get help for everyday tasks? Are you able to speak privately with anyone

you wish to see?

If Red Flags are Present

Who arranged this visit? ( to the lawyer or financial adviser)

Does anyone help you make decisions? Has anyone told you that you should reward

him/her for the things that he/she does for you?

Answers to these questions may point to the involvement of an other person in the client’s financial and legal affairs, and the nature of that involvement

If Red flags are present

Explore whether the client is a victim of abuse in other contexts

Is the client a victim of physical, psychological or financial abuse?

Ask questions like: has anyone ever hurt you?

Have you ever signed any documents that you didn’t understand?

Are you able to see people you enjoy spending time with and do the things you wish when you want to do them?

If Red Flags present

If you believe the older person is in imminent danger, under section 46(1) of the Adult Guardianship Act you may report abuse or neglect of an adult to a designated agency if the adult is unable to seek support and assistance on his own, due to physical restraint, physical disability limiting the ability to seek help, or an illness, disease, injury or other condition affecting the ability of the adult to make decisions about abuse or neglect

If Red Flags are present

If the physical or financial abuse is of a criminal nature the matter can be reported to the police

The Public Guardian and Trustee of BC also has investigative powers with respect to financial abuse that may be exercised in certain circumstances

Each year the Public Guardian and Trustee receives more that 1500 reports resulting in an average of 1100 investigations

If Red Flags present

If capacity is in question obtain a medical assessment

Medical Assessment

If suspicions mount: Compile a list of events described by the

older adult and others that are indicative of undue influence in order to substantiate your conclusion

Retain detailed notes of your interview of the older adult

Even if you don’t proceed you should keep the file for the period recommended by your governing body

Compile list of events

Good idea to file a wills notice with the clients consent

This will help to make the existence of the will known to those who need to be aware of it if the client signs a later will that is challenged on the grounds of undue influence

Wills notice if making a will

In the case where there are several red flags you need to weigh the seriousness of the level of suspicion against the prospect that your document may subsequently be held to be invalid

If more probable that the document will be held to be invalid do not proceed

Not improper to inform the older person of the resources available in the community for assisting victims of financial, emotional or other abuse when explaining the reasons for your decision not to proceed.

If suspicion remains high after reasonable investigation

If the older adult is capable, set up a new power of attorney and revoke an old one

Set up separate bank accountsallow the older adult to have some funds in their name and transfer the bulk of the assets into another bank account that they don’t have immediate access to so that others cannot take them to the bank and withdraw

How can you reverse suspected Financial Abuse?

If the power of attorney is at the bank only and the attorney is abusing the situation, set up a bank account elsewhere and prepare an enduring power of Attorney so that the abuser won’t have access

Contact the Public Guardian and Trustee and have them investigate

Strategies to Combat Undue influence

File a caveat on the land title Section 282(2.1) of the Land title Act gives attorneys

the right to file a caveat if they believe that the property is or may be in danger

Caveats expire in 2 months unless placed by the Public Guardian and Trustee or a committee

Don’t “notarize” transfers without giving legal advice

Strategies to combat Undue Influence

Prepare an opinion letter advising against the transaction if the client wants to proceed against your recommendation

Obtain a doctor’s letter confirming capacity Include additional provisions in the

agreement that gives a bit more protection than what might have been without your involvement

If you choose to proceed

WESA comes into force on March 31, 2014 Introduces a shift in the onus of proof in

relation to undue influence challenges to wills

Someone may challenge a will alleging that it does not reflect the true wishes of the will maker, but as a result of undue influence by a third party.

If established the will is void

A Shift of the Onus of Proof (WESA s. 52)

Currently the onus of proving undue influence affecting a will always falls on the challenger

Can be difficult to establish when the facts are only known to the will maker, now deceased

Section 52 of WESA reverses that onus, in certain circumstances

The onus currently

If the challenger establishes that a third party was in a relationship of potential domination or dependence of the will maker, the onus now shifts to the party seeking to defend the will to prove that no undue influence was exercised by the third party

This shift may result in an increase in undue influence challenges

Under S. 52 WESA

Expect to be called as a witness in the ensuing litigation

you may be compelled to testify about the facts and circumstances surrounding the making of the will and to produce your file

If you haven’t kept adequate notes and failed to take reasonable steps to ensure the will reflects the will maker’s genuine wishes, you make be at risk

When drafting wills

Prepared by the BC Law Institute Excellent reference aid summarizing the

recommended practices, with a checklist, flow chart and red flags

Available on the law society of BC’s website

Best Practices: A guide and Reference Aid

Thank You