Category Archives: Elder Law

Elder Abuse

A common misconception about elder abuse is that it is intentional. Another misconception is that it is apparent to those in the lives of an abused senior. Often, elder abuse is neither intentional nor apparent. So then, what is elder abuse and how can it be identified?

Elder abuse may be physical, emotional or financial. It may be overt or neglectful. Financially, it may be through theft or conversion of assets, or through misguided frugalness.

We should all be observant of the physical condition of the seniors in our lives. Injuries seeming to have easy explanations should not occur too frequently. Repeated injuries may be evidence not only of abuse, but of an underlying medical condition or of a living arrangement that is no longer suitable. When living arrangements are no longer suitable or medical needs go unattended, a lengthy delay in moderating a senior’s circumstances could indicate neglect.

In my estate planning practice, I meet with clients at various stages in their lives. As clients age, I often notice an increased isolation in their lives. It is important to remember that isolation can leave our aging loved ones vulnerable. A loved one who becomes increasingly generous with family, friends and caregivers, may be responding to loneliness. Accepting valuable gifts under these circumstances may be inappropriate. The question to ask is whether the senior in question believes you would still spend time with them if they did not generously provide you with such gifts.

Most clients who ask me about elder abuse are specifically interested in financial abuse. This most often arises in the context of a person who holds a Power of Attorney or who has been added as a joint account holder. Although there are factors considered at court to determine whether a joint account is truly the property of both account holders or whether one of them is the agent of the other, naming another person jointly on accounts is not advisable if the goal is to permit that person to assist with bill payments and routine purchases, as it leaves room for doubt as to ownership of funds.

A Power of Attorney document appoints someone who very clearly has a fiduciary relationship with the person who appointed them. This means they must always act in that person’s best interest, without regard to their own interests. Obvious violations of this trust include direct theft from accounts or purchasing expensive gifts for themselves on behalf of the senior. However, an example of abuse not often identified by others in a senior’s life is where money is saved rather than being spent on improving a senior’s final years.

Certainly, an attorney must not be spendthrift with a senior’s money. But where a savings account, RIF or other assets exist, utilizing those assets to provide a higher standard of living to a senior should be considered. Saving money to ensure a sizeable estate is a form of abuse that often goes undetected; it is also a form of abuse that is often unintentional.

This article serves as only a brief overview of an important issue. Additional resources are available at www.seniors.gc.ca.

Intestacy and Predatory Marriages

Predatory Marriages – what are they, how can we protect elderly loved ones from them and how can they can impact estate inheritances?

As our population ages in the coming years, it is anticipated that personal wealth in the astonishing range of several trillion dollars, will be transferred from one generation to the next. Much of this wealth will transfer simply from husbands to wives or from parents to children.  Other wealth, however, will transfer from a widowed parent to a new life partner against the testator’s previously stated wishes, either due to legal requirements or due to the influence of the new spouse.

The case of Banton v Banton in Ontario is a perfect example of how a predatory marriage can impact an otherwise standard family distribution.  The testator in this case married a member of the food services staff in his long-term care facility, then revised his will to provide for his new wife; notably, his estate was large enough to have provided for both his wife and his children, but his new will distributed his assets to his second wife.

Following Mr. Banton’s death, his children challenged the validity of the will and the following facts were considered:

  • The marriage occurred very close to the end of Mr. Banton’s life, following a period of reliance upon the new wife as a paid caregiver;
  • Mr. Banton was deemed to have been mentally incompetent at the time he wrote his new will (and likely also at the time he entered into the marriage);

In Ontario, much like in British Columbia under current statutory law, marriage nullifies previously existing wills.  The will Mr. Banton executed before his second marriage was no longer valid under the terms of the statutory law.

Mr. Banton was deemed to be mentally unsound at the time of drafting his new will after the questionable marriage.  This will is therefore not viable for probate purposes, rendering Mr. Banton intestate (having no valid will), and his estate became subject to distribution in accordance with the government’s statutory provisions for individuals without wills.

Currently, in British Columbia, if this situation were to arise, Mr. Banton’s second wife would receive the first $65,000 of his estate assets, as well as 1/3 of the remainder of his assets. His children would split the other 2/3 of the remainder of his assets equally between him. These distributions would, of course, occur after his debts and those of his estate had been repaid in full.

As our population ages, we need to turn our minds to the ongoing right of our elders to direct their lives, engage in rewarding interpersonal relationships and explore new experiences.  We will also begin to see increased cases providing guidance on how to ensure mental competence at the time of a late-stage marriage.

At McQuarrie Hunter LLP, we work with clients to ensure protection of family assets, responsible support of loved ones who are engaged in legitimate relationships and the eventual distribution of our clients’ assets in accordance with their stated wishes.