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CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged

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Elder Abuse – Prevalence, Identification, Response and

Intervention….. Beyond the Basics

Judith Wahl

Advocacy Centre for the Elderly

[email protected]

Advocacy Centre for the Elderly 2009

About our Presenter

Judith Wahl, Barrister and Solicitor, has been the Executive Director and Senior Lawyer at the Advocacy Centre for the Elderly (ACE) since 1984. ACE is a community legal service for low income seniors that focuses on legal issues that have a greater impact on the older population.

Judith has organized and taught numerous public legal education programmes to social workers, health practitioners, and other social service providers on legal issues that arise in their day to day work with seniors, including Advance Care Planning - Physicians’ Training Ontario College of Family Physicians and Alzheimer Society of Ontario; Gerontology Programme at McMaster University, Faculty of Social Sciences; the Diversity Training Course at C.O. Bick Police College; as well as Continuing Legal Education Programmes for the Law Society of Upper Canada, Ontario Bar Association, the former Canadian Bar Association – Ontario, and the Canadian Bar Association National.


Advocacy Centre for The Elderly

2 Carlton Street, Suite 701Toronto, OntarioM5B 1J3

Tel - 416-598-2656 Fax - 416-598-7924 Email [email protected] Website * NEW www.acelaw.ca


Overview What is Elder Abuse – Lesson 1 – The Literature

isn’t always Exactly Right Who is being Victimized – Lesson 2 – This is a

community Problem and not just that of “vulnerable persons”

Why People Don’t Seek Help – Lesson 3 – the Systems SAY that help is there but the Practice doesn’t always match the “Ads’


Overview Responses to Abuse– Lesson 4 – How Ageism

impacts on approaches to addressing Elder Abuse

Responses to Elder Abuse- Lesson 5 – What do SENIORS and ALL SERVICE PROVIDERS and OUR COMMUNITY need to know to be able to prevent, and respond to abuse

“Traditional” Responses to Address Abuse Lesson 5 – Are we doing things that make it LOOK like there is a Response when the way we respond doesn’t work in practice? Possible Better Practices


* What is Elder Abuse ?

What is elder abuse? What do you think is elder abuse? Do you think that the seniors in your

community may have some different perspectives on this? If yes, why?


Abuse of Older AdultsWhat is it? The mistreatment of an older person by someone

they should be able to rely upon - a spouse, a child, another family member, a friend or a paid caregiver

Any harm done to an older person by a person in a position of trust or authority

any action or deliberate inaction by a person in a position of trust which causes harm to an older adult


Abuse of an Older AdultWhat is it?

Many definitions - differs between professions/individuals

We may assume that we are talking about the same thing but aren’t

ultimately the definition debate is not that important as it’s the steps we take to prevent abuse and the response to abuse that is taken that is key


Abuse of Older AdultsWhat is it?

Not just criminal behaviours Not just civil matters Doesn’t happen only to “vulnerable” adults

The Complexity of the issue reflects the need for a variety of responses


Abuse of an Older AdultWhat is it?

Common theme in many definitions is abuse of power hence the emphasis on the relationship between perpetrator and victim

relationships are abusive when a person uses various tactics to maintain power and control over a person


Abuse of Power - What is it?

Using Coercion andThreats

Using Intimidation

AbusingEconomically

Using Family


Abuse of Power- What is it?

Minimizing Denyingand Blaming

Isolating a Person

Using Privilege Abusing Emotionally


Types of Abuse for which Seniors have contacted ACE for assistance

Most common inquiry by seniors to ACE concerns loss of the senior’s authority/ when others may “decide” for the senior and when does he or she have the right to make decision for him or herself?

Also systemic abuse– when “systems” assume that seniors do not have rights , usually on the basis of wrong assumptions


Examples of Situations that can be called abuse that ACE has assisted Seniors withTitle and Mortgage Fraud

Recovered title to Elderly woman's home where Son and daughter in law changed title to property using POA

Mortgage-fraud case where ACE’s client who had some cognitive impairment conveyed title to her home-renovation contractor, who then mortgaged her home three times to the extent of $450,000, with the mortgage proceeds having gone to the contractor.

Set aside a Writ of Possession and successfully defended two mortgage actions that threatened eviction of an elderly widow whose son, grandson and her grandson’s common-law spouse conspired to defraud her of title and steal mortgage proceeds using a forged power of attorney

Successfully defended a mortgage action brought against a client whose daughter, while ACE’s client lived in social housing, fraudulently placed ACE’s client on title to the daughter’s home and refinanced it in ACE’s client’s name, before defaulting on the mortgages leaving ACE’s client responsible for payment of the mortgage debt.


Examples of Situations that can be called abuse that ACE has assisted Seniors with

Civil Action for Restitution - Recovered $28,000 for an older woman with a developmental disability who had been sold 14 different insurance policies over a 30 year period that were of little or no value to her. The Insurance company was specifically informed that the woman had a developmental disability of a nature that she was not capable to contract, but they continued to sell additional policies to her. Court action was commenced for restitution and punitive damages. The action was settled for $28,000 which represented the return of all premiums paid, plus interest, costs, and punitive damages. The funds are now being used to allow this woman to have a private room in a long term care home in which she now resides.


Examples of Situations that can be called abuse that ACE has assisted Seniors with

Duty of an Executor - Recovered a $30,000 testamentary trust left to ACE’s elderly disabled client from his mother’s estate, administered by his sister who had refused to account or turn over any part of the trust proceeds despite the intervention of two privately-retained solicitors

Civil action to recover Debt- Obtained ongoing monthly payments of $1,500/month on a $70,000 debt owed to ACE’s elderly widowed client by her former neighbour, a school teacher, who had previously refused to make payment on her debt


Abuse Case Examples Cont’d

Professional Misconduct Lawyer- Complaint to Law Society- proceedings before

Discipline Committee brought against a cognitively–impaired client’s former solicitor, who charged her $3,000 to prepare a simple will and power of attorneys that were never signed, and whom refused to divulge the content of her file. A finding of professional misconduct was made in September 2008, with disposition on penalty to follow.

Physician- Obtained a decision from the Health Professions Appeal and Review Board that treatment without consent by a hospital physician formed professional misconduct for which the physician was sanctioned



Gaps in Legislation - Obtained a decision from the Ministry of Health and Long Term Care to have the Complex Continuing Care rate be used to determine the charges for a 56 year old man who was a resident in a long term care home. Had the Long term care rates been applied to him, his wife and son living in the community, who were not eligible for welfare and had only limited employment income, would have been forced into poverty. ACE continues to advocate with the Ministry of Health and Long Term Care to address this problem of charges for long term care in the regulations to the new Long Term Care Homes legislation as this problem impacts all families in which one spouse, although “young” (under 65) must seek admission to a long term care home due to a chronic illness that cannot be managed in their own home. Also affects situations where one spouse over 65 is a resident in a LTC home and spouse in the community is under 65 and a dependent on the resident.



Problems in the Health System and Systemic Abuse - Successfully defended a large number of clients who could not return to their own homes from hospital but needed admission to long term care homes who had been threatened with large per diem charges by hospitals when the clients exercised their legal rights in respect to admission to long term care homes that met their needs. ACE has also undertaken systemic advocacy with the Ministry of Health and Long Term Care to address this issue because of the high volume of cases of this type.


Abuse Case Examples Cont’dProblems in the Health System Successfully advocated for a client to get admission to a long term care

home of her choice when the various parties involved in her discharge at the hospital and at the Community Care Access Centre had failed to follow the required process and Ministry policy in respect to admission

Assisted a man with a chronic degenerative disorder who could not live independently to get admission to a long term care home. Although he needed long term care, he had been refused admission by all the long term care homes to which he had applied. He also could not get admitted to a hospital because he did not have high enough care needs to be eligible as a complex continuing care patient. ACE staff advocated with the Community Care Access Centre and with the Ministry of Health and Long Term Care to get admission into a long term care home. This advocacy took place over nine months, This case illustrates the need for a formal process and a patient’s right to a review of refusals of admission by long term care homes


Legal Definitions in Criminal Code - Physical Abuse

Assault s 265 Assault with a weapon or causing bodily

harm s. 267 Forcible Confinement ss 279(1)


Sexual Abuse, Neglect, Mental Abuse

Sexual Assault s.271 Breach of Duty to Provide Necessaries

s.215 Intimidation s.423 Uttering threats s.264.1.


Financial Abuse

Theft s.322 Theft by a Person Holding a Power of

Attorney s.331 Fraud s.380 Extortion s.346 Stopping Mail With Intent s.345 Forgery s.366


Definitions of Abuse Doesn’t need to be labelled “elder abuse” to

be that Abuse occurs in systems when the law is not

followed Abuse occurs when misinformation about

rights / responsibilities is given out Services may contribute to abuse when they

give authority to Attorneys in POAs or to SDMs that they don’t have


Definitions of Abuse

Definition of Abuse in long term care settings - different perspectives on what is “good care” - different perspectives because it is a work place for the service providers but the home of the residents

- similar issues arise in respect to other “services’ where there may be a disconnect in what the users and providers think of as abuse


*Who are the victims of abuse?

Who do you see that you think are victims of abuse?

Why do you think they are victims of abuse? Have you talked to the person you think is

being abused about what you think is happening to them?


Profiles of Victims and AbusersWhat the Literature Says…

Be widowed or living alone Be socially isolated Be under the control or influence

of the abuser Have some degree of physical

impairment or mental incapacity Be physically frail, but mentally

capable

Have substance abuse problems

Have a history of mental illness or emotional problems

Be dependent on the older person for assistance

Be resentful of caregiving role May not have visible

dysfunctional traits

VICTIMS may … ABUSERS may …


Profile of Victims and Abusers Is the Literature up to date? Victims may ALSO be very able people and not the

traditionally “vulnerable” person Abusers may seem very helpful and concerned for the

victim Victims may become victims because they see the

abuser as being helpful and themselves as needing “help” or companionship or….

Watch out for your own stereotyping Don’t let a stereotype approach to abuse direct how

you/your community responds


Risk factors for abuse Family history of abuse Physical frailty Cognitive status Isolation Finances

But Also – Lack of Knowledge of Rights - Dependency on “Systems” that

don’t know the rights of the seniors or have different perspective on what the rights of the senior are


Data on Prevalence

Depends on how you define it and how the data makers define it/ perceive it/ etc

Seems to be no current comprehensive Canadian research on prevalence- Stats Canada discussing doing such a study


Europe – Simon Biggs et al.

Germany- 1 in 4 subjects age 60+ report incidents of verbal aggression by family and household members

1.3% older men and 1.6% older women report physical violence

-prevalence of physical and psychological abuse twice as high for 40-59 than plus 60

UK- any mistreatment 2.6%; neglect 1.1%, financial .7%; psychological .4%; Physical .4%

Nordic countries- recent concern with over medication , restraint, and understaffing in care


*What do you do/ is possible for you to do when you see abuse?

What do you do/ can do if you think abuse is happening?

What are the challenges for you in responding?

What are the challenges for the victim in doing something?


The Abuse Dynamic

Abuse of older adults more parallel to domestic spousal abuse than child abuse

a different dynamic than spouse abuse because abuser may be own child

you can divorce your spouse but not your child Older adults are ADULTS not children, even if they

lack mental capacity for some purposes


Why Seniors Fail to Seek Assistance Shame, guilt, fear of reprisal fear of police and court system or belief that

police can’t help fear of not being believed don’t realize they are being abused don’t know their rights in a system cannot see an alternative to the situation are not aware of support services that could help fear of being “placed” in an institution


Why Service Providers Fail to Talk to the Senior or to Contact Police or Help Directly

Reluctance of raising the issue with the senior Belief that if they talk to the senior the senior will refuse help Belief that information they have is confidential to them alone Failure to recognize abuse as a crime Fear of the abuser Reluctance to be a witness Lack of understanding of the Seniors rights in a system


*Would you respond differently to a younger woman that was being abused within her family than to a senior that is being abused within his or her family? And why?


AGEISM

The prejudicial stereotyping & discrimination against older people

It is important to examine whether you carry with you ageist attitudes in how you look at abuse and respond to abuse


AGEISM

Diminishing the self worth of senior Assumptions, e.g. physical frailty vs mental frailty,

treating senior like a child, removing decision making process

Ignoring a senior’s wishes Brush offs Assumptions about the Seniors rights in the system

eg Hospital Discharge or Rights within a Retirement Home or Personal Care home


Capacity and Substitute Decision-Making

Most older adults are capable of making their own decisions

Capacity can change from decision to decision, and from time to time

There is not a single test that determines capacity for all times and all purposes

Watch out for a “Best Interests Test”– a Capable person has the right to Risk


Important Tips on Capacity Issues

Do not automatically assume that frail elderly people are incapable

Speak with the older person, not around him/her Help to empower the older person DON’T assume that the Attorney in a POA has power just

because he or she is named in a POA Understand when the attorney in a POA HAS power and what

power they have and when they don’t have power Understand the Authorities ( or lack thereof of an SDM) Recognize potential conflicts of interest & opportunities for elder

abuse by a substitute decision-maker


Best Interests vs. the Senior’s Right to Decide

Although people say that they believe any abuse response should be from the point of view of the older adult, when the time comes when the “service provider” faces the tough situation – best interests rather than support may occur; someone may decide FOR the senior despite the fact that the senior is mentally capable; someone else may assume that they know better


* Lets talk about possible response to elder abuse

What do we need to know in order to respond and help people or help people get help?

What do you think you don’t know about and what to know more about?

Where do you get that info?


Things to Think About in Creating Options to Respond

Need to understand what victims WANT and NEED as opposed to what Service Providers and Others Want and Need

Need to Understand why people REFUSE help


Needs of Victims (1)

1. To Stop the Abuse 2. Safety, Shelter 3. Financial Resources 4. Home Support Services/Housing

Alternatives


Needs of Victims (2)

5. Emotional Support, Counselling, Links to the Community

6. Information on the Criminal Justice System and on Other Legal Rights/Remedies


What do YOU think you need to know more about? Authority of people for their own decision making and what that

means Services and systems that are in your community that are not

necessarily labelled as elder abuse services Duties and powers of attorneys in POAs and when the attorney

has that power and authority Powers and authorities and duties of other SDMs and when they

have that authority Privacy and how that impacts on what you do and how you help How to gain access to people that may be victims of abuse How to talk to people about possible abuse


Other specific response to Elder Abuse

There is often a stereotyped response form people when they talk about elder abuse

We see repeated calls for mandatory reporting legislation or services like Elder abuse hotlines …. But ….when people ask for these response do they understand how these ACTUALLY work and NOT WORK ??


Other Responses to Elder Abuse -- The “Usual” Responses – But…..

Reporting legislation in the Community– does this work and would it help? Who does it help? What are the limitations of such a system? Is it a best practice or is something else better?

Reporting legislation in Health Care Facilities (Long term care homes). Why is that there and does it work and who and what does it depend on?


The “Usual” Responses – But…..

Hotlines – How do these work? What are their limitations? Who do they help? What is necessary for these to be effective?

Protocols- What are these and how do they work and what are their limitations and how do you limit the “limitations”

Education to Raise Awareness– what works, what doesn’t, what are some of the challenges….

Community Consultation Teams - do these work, and what about privacy, and what are their limitations

What else????


And What About? Other Legislative Changes ie Retirement Homes and Home

care? Training and better understanding about the law, policies and

practices about mental capacity, decision making authority, health consent, advance care planning, privacy and …

Legal Services for Older Adults? Other Supportive Community Resources and Community

Networking ? Provincial and local resources? Public intervention by the Public Guardian and Trustee in respect

to Persons that are Incapable and at Risk of Serious Harm?


Other Systemic Abuses

Inappropriate hospital discharge Use of advance directives/ level of care forms

instead of consent “Requiring” seniors to do things that are not

requirements in the law and not necessarily the best for the senior but are done for institutional convenience or for other reasons that benefit someone other than the older adult

HOW do we address / respond to these issues?


Main Lesson Learned through our work at ACE

TALK TO THE SENIOR!!!!!!! Most people say that they want to get the message

out any response will be senior focused and that if at all possible with the consent and at the direction of the senior BUT much lip service is given to this in practice, often unintentionally sometimes because they don’t have time, or because…


Specific Service Responses

When services say that they are responding is that the case? How many seniors’ services use voicemail to answer the phone?

Does this really help the older adult get access? How many services set up protocols but then don’t allocate time

to learn them, or integrate them into the service, or use them to give access? Or are the protocols used to limit access?

How many services set up “rules” or “eligibility” requirements that do not necessarily reflect the governing law?


Main Lesson Learned through our work at ACE

Many services SAY that they are senior focused – but aren’t in practice

Systemic abuse is very difficult to address as it requires major policy change in some cases

With the growing population of seniors these changes better start or there will be significant problems in our communities across Canada


Looking Beyond the “Usual”

Is it possible to look beyond the “usual” ? Will the “responses” work in practice? Do the “responses” actually meet the senior’s

needs? How do we go beyond “saying” that we are doing

things and move into actually making progress and helping in a way that seniors find meaningful and not just the service providers and politicians find meaningful?


Something to Think About

What can YOU do To increase awareness about abuse of older

adults? To help prevent abuse ? To support those services that are working with

seniors to prevent abuse and to respond to abuse?

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