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Elder Law & Elder Abuse

Whaley Estate Litigation



Changing demographics render the law as it affects older individuals increasingly important.

Older individuals can also be particularly prone to legal abuses.

Elder abuse, or the abuse of older adults, is often defined as any act or omission that harms a senior or jeopardizes his or her health or welfare. The World Health Organization defines abuse of older adults as "a single or repeated act, or lack of appropriate action, occurring in any relationship where there is an expectation of trust that causes harm or distress to an older person". Elder abuse can take place in the home, in other residential settings, or in the community. It is estimated that between four and ten per cent of Ontario's seniors experience some type of abuse.

Legal abuse can take many forms where the abuse of trust involves a legal instrument and construct. Often abuses involve an abuse of power granted under a Power of Attorney (POA) for property, the exertion of undue influence on an elderly person when he or she is drafting his or her Will, and so on.

Disputes that I see in my practice concerning Attorneys for Personal Care and Property include the following:

  • (1) Disputes and accounting discrepancies concerning the specific dates upon which the POA document became effective; the date of incapacity of the grantor; and the extent of the Attorney's involvement;
  • (2) Whether the Attorney has made unauthorized, questionable or even speculative investment decisions, or decisions or decisions lacking in diversity;
  • (3) Whether the Attorney has taken into consideration the tax effects of the Attorney's action or inaction;
  • (4) Whether the Attorney has acted in a timely fashion in attending to financial matters which may have contributed to unnecessary expenses, or damages from inaction;
  • (5) Whether the Attorney has sought professional advice where deemed necessary or appropriate;
  • (6) The Attorney's treatment of and dealings under jointly held assets or accounts;
  • (7) Attorney disputes between siblings regarding the capacity\incapacity, action\inactions, of a parent\grantor;
  • (8) Attorney disputes among step-children, children of prior relationships, subsequent spouse\partner;
  • (9) Attorney misappropriation of grantor's assets;
  • (10) Attorneys acting ultra vires their power to effect testamentary acts;
  • (11) Incapacity of a grantor to grant a POA;
  • (12) POA obtained from incapable or vulnerable grantor by an individual with improper motives, seeking personal gain, as a result of the exerting of undue influences, or suspicious circumstances;
  • (13) Fraudulently obtained Powers of Attorney;
  • (14) Forged Power of Attorney documents;
  • (15) Powers of Attorney used to perpetrate a fraud;
  • (16) Disputes where one or several Attorneys have acted without the knowledge or approval of the others either under a Joint, or Joint and Several, POA.

Specialized legal expertise can assist in addressing these concerns.