Elder Law Review
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Margaret Isabel Hall, LLB., LLM[*]
The security and well-being of older adults in the “grey zone”- not incapable but more vulnerable- is a key area of concern among practitioners and legislators. The diminished capability associated with disease may be gradual and spotty, a “grey zone” that can last for years. Other, non-medical factors are also significant: vulnerability arises by reason of an individual’s total life situation, including relationships, education, experience, personality, and connection to society.
Protecting the interests of the vulnerable but capable has been considered in terms of protection from abuse, and/or in terms of capacity. Each approach has significant conceptually structural problems. Unless a very narrow definition of “abuse” is used (essentially replicating the criminal offences dealing with assault and theft) adult protection legislation has inappropriately paternalistic aspects; older adults are entitled to make objectively foolish choices, take risks, or prefer new, disreputable friends over older, staider ones. Older adults do not require protection from the consequences of their own choices, freely made. A finding of incapacity would resolve the difficulty by simply re-categorising the vulnerable person as incapable, a response that will often be excessive and result in an unwanted and unnecessary loss of independence. Modern least-intrusive adult guardianship legislation attempts to modify that “all or nothing” outcome through a scheme of graduated capacities. In reality neither paradigm - abuse or capacity- realistically captures or appropriately responds to the range of situations in which the vulnerable but capable adult requires the assistance and support of the law. Those situations are most accurately understood with reference to the conceptual framework of equitable fraud.
“Elder abuse” secured a place in the public consciousness and on the policy agenda in the 1980s and ‘90s. Elder abuse generally, like child abuse, is defined with reference to a set of sub-categories or types of abuse:[1]
• Physical abuse
• Financial/material abuse
• Sexual abuse
• Emotional/psychological abuse
Of the types listed here, financial or material abuse is closely identified with older adults in particular; although non-elders may experience financial/material abuse, the category is closely associated with elder abuse.
The loss of money or property is always difficult, but the consequences for older adults, who are generally less able than younger people to replace money or assets, may be particularly grave.[2] The “nest egg” (either in the form of money, property or pother assets) represents for the older adult the culmination of years of working and saving, and its loss may be especially devastating. In the domestic setting, loss of property or financial independence will too often be joined by shame, recrimination and ruined relationships.
The aspect of culmination which makes material loss particularly damaging for older adults (the “nest egg” accumulation at the end of an individual’s earning and saving cycle) also works to make older adults “prime targets for those desiring to take financial advantage of someone.”[3] This dynamic is accentuated where rapidly escalating property prices have led to significant numbers of “house rich” but income poor older people, on the one hand, and younger people struggling to enter the housing market, on the other.
One other consequence of these factors is to make it more likely that older adults will be in a position to provide assistance to younger family members or friends, either through loans, agreeing to act as guarantors, or by providing housing. The desire to provide this kind of assistance to children or others is in no way pathological, nor is it necessarily connected to “abusive” behaviour on the part of the recipient.[4] It is important to avoid stereotyping inter-generational relationships; the adult child who needs help is not by definition weak and grasping, nor is the older helper necessarily coerced, tricked or taken advantage of.
This paper suggests that, in the domestic setting, the line between the proper and the improper, “abuse” on the one hand and “inter-generational asset management”[5] on the other, is not always bright, and that the diagnostic tool of “intentional abuse” will therefore often be inappropriate in this context. The conceptual framework of equitable fraud provides a more coherent basis for protecting the interests of vulnerable older adults in intimate personal settings.
The problem of “financial abuse” (sometimes referred to as “material exploitation”) of older adults in domestic settings has been described as a “hidden problem” that many feel uncomfortable reporting or otherwise revealing to others. [6] For this reason, it is suggested, reported cases are the proverbial tip of an iceberg the true dimensions of which lie submerged and unknown. The problem of definition, in circumstances that may be narratively ambiguous, is a possibly greater complication, however. Where existing definitions do not realistically describe the social problem concerned, legislation incorporating those definitions will necessarily exclude the greater mass of the problem (to continue the “iceberg” metaphor).
“Financial abuse” and “material exploitation” (used interchangeably) have generally been defined in Canadian literature with reference to the intentional blameworthiness of the “abuser.” Dr. Robert Gordon, for example, defines material exploitation as the “illegal or improper exploitation of an older person’s funds, property or assets” providing examples such as “cashing an elderly person’s cheques without authorisation, forging an older person’s signature, mis-using or stealing an older person’s money or possessions, coercing or deceiving an older person’s money or possessions, coercing or deceiving an older person into signing any document (a will, for example), and the improper use of guardianship or power of attorney.” [7]
This kind of definition is overly narrow, and therefore inadequate, in two key respects. First, the focus on financial and property transactions works to exclude other kinds of situations that would be captured within the broader definition allowed by the words “material exploitation” (as opposed to the necessarily narrow “financial abuse”). Perhaps the most notable of these is the problem of unwanted residence where a younger friend, family member or acquaintance has taken up residence in an older person’s home and, in effect, taken over the household. Overt or subtler, internal; pressures (as in the story of Teresa X, infra) may be at play to the effect that it becomes extremely difficult for the older adult to remove their unwanted “guest”, although the consequences of unwanted residence may be extremely serious (where the older adult faces eviction form public or private housing because of the conduct of their “guest,” for example). If the occurrence of financial exploitation is difficult to measure, this form of material exploitation is even more so. Financial and property transactions tend to be visible to potential “gatekeeper” figures such as financial institutions, lawyers, and notaries. The problem of unwanted residence is less likely to draw in third parties, and so will tend to remain invisible.
Second, the focus on the intentional conduct of the “abuser” (“illegal or improper exploitation”) significantly limits the realistic application of this definition in domestic settings, where ambiguity around issues of blameworthiness and fault (the “proper” and the “improper”) is frequently a hallmark of financial transactions and support relationships. Was the withdrawal of an older person’s funds done with that person’s authorisation or was it a “mis-use”? Was the benefit conferred (money or property) a gift, theft, or compensation for caregiving? Was the older adult ‘coerced” into changing a will to favour a particular individual or was the change made voluntarily in recognition of a close and valued late life relationship? Is the older man who supports a young woman and plays host to her friends the victim of exploitation, or a generous individual who enjoys the company- perhaps both of these characterisations contain a measure of truth? In many factual situations, these questions will be impossible to answer definitively; indeed the parties themselves may evaluate their circumstances differently at different points in time. The dis-use of section 331 of the Criminal Code, “Theft by person holding power of attorney,” may be a function (at least in part) of this factual ambiguity, the criminal sanction being dependent on clear lines of intentional wrongdoing.[8]
Adult protection legislation in Canada also incorporates the intentional paradigm, with a focus on the blameworthy abuser. Part Three of British Columbia’s Adult Guardianship Act[9] defines “abuse” as the deliberate mistreatment of an adult that causes the adult
(a) physical, mental or emotional harm, or
(b) damage to or loss of assets,
and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors.
“Neglect” is defined here as “any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage to or loss of assets, and includes self neglect.”[10]
Legislation in other provinces requires the “incapacity” or “impairment” of the older adult in addition to intentional or deliberate mistreatment or abuse.[11]
In all cases, the focus on the intentional wrongdoer works to exclude more ambiguous factual situations from the scrutiny of the law. This restriction reflects underlying policy, that older adults are as free as others to make unwise choices about relationships, reflected in the “Guiding Principle” set out in section 2 of the Adult Guardianship Act, that “all adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters”. The law does not, and should not, concern itself with every species of human unhappiness. Those jurisdictions requiring an additional finding of incapability or impairment on the part of the adult as an additional precondition to the investigation of abuse further restrict the kind and number of situations in which the law will intervene and reflect a policy decision that intervention of behalf of capable adults in abusive situations, at any age, is an unjustifiable intrusion on autonomy.
But what about the range of factually more ambiguous situations excluded by the intentional abuse/incapability paradigm? Is legal response necessary, or even desirable outside of these conceptual limits?
Consider the story of Teresa X, and older woman who allows her 20-something grandson to move in “for a few weeks” until he gets back on his feet. A few weeks turn into a few months, and the grandson shows no signs of moving on. Grandson has issues with substance abuse, and shows no real interest in finding employment. Rather than looking for work grandson hangs about the house all day, increasingly with friends that make his grandmother feel uncomfortable. Mrs. X is supporting her grandson financially in addition to letting him live in her apartment. To sum, grandson’s long term presence is not welcome and is having a negative impact on his grandmother’s life.
A difficult problem for Mrs. X, but interpersonal relationships with family members do not always unfold according to plan and helping out family members going through difficult times is not pathological but, for many, a duty and a virtue. Does Mrs. X’s unhappy relationship require or justify legal intervention because of her age?
A year passes, and grandson is still there. His substance abuse problems have intensified; he often behaves strangely, speaking harshly to Mrs. X. Mrs. X loves her grandson, but she has become rather afraid of him (this is something Mrs. X confesses only to herself, when feeling particularly low). She definitely fears and dislikes his friends, who she thinks are dealing drugs. In fact, she fears that grandson is involved in selling drugs also. Mrs. X is still supporting grandson financially, and has increasingly had to draw down her savings. Mrs. Z finds it difficult to do full housekeeping but grandson does nothing and, between him and his friends, the apartment has become a shambles.
Mrs. X feels a great deal of shame about what has happened to her living situation- shame that her grandson is the way he is, shame that her home has deteriorated as it has,
Shame that she has been “too weak” (in her estimation) to stop this from happening. She worries obsessively about her dwindling financial nest egg.
Mrs. X would like grandson to change but, if that doesn’t happen, she would like him to leave. She cannot bring herself to ask him to leave, however; she doesn’t know how he would react and she is worried about his friends (who have come to use her apartment as a kind of base). Mrs. X feels she has no one to turn to. Her friends (never plentiful to begin with) no longer feel comfortable visiting. Mrs. X can sense that they feel intimidated by the constant presence of grandson and his friends, although grandson has never explicitly tried to exclude visitors. Meanwhile, Mrs. X’s apartment manager has spoken to her about complaints received in connection with noise and late night comings and goings from her apartment. Mrs. X is terrified that she will be evicted from the apartment where she has lived for the last 25 years.
Mrs. X’s grandson is now asking her for a “loan,” to be supplied by Mrs. X cashing in her remaining RRSPs. He talks about it constantly; how a loan would allow him to invest in a “business opportunity” (which Mrs. X suspects involves drugs), finally get back on his feet, and find a place of his own. Grandson swears the money will be repaid within a year. When Mrs. X demurs, grandson appears crestfallen and says that no one in the family has ever had any confidence in him or his plans. Mrs. X feels very sad and guilty when she hears this; she suspects it to be true, and the root of grandson’s problems. Mrs. X feels she has no choice but to go along with grandson’s suggestion; the current situation is increasingly unbearable.
No crime has been committed here. Mrs. X’s grandson is not stealing from her, he is not beating her. He was invited into Mrs. X’s home through invitation, and she has never asked him to leave. He has not threatened or physically intimidated her, nor has he acted to isolate her by disallowing visits from friends or other concerned individuals. Mrs. X’s grandson has not cashed her cheques, nor has he forged her signature or deceived her.
Is Mrs. X’s predicament, while unfortunate, still essentially private? Is it society’s business, or concern, whether Mrs. X “chooses” to continue living with her grandson in deteriorating conditions, draining her financial resources, and risking the loss of her home? Or is there a legitimate role for the law to support and protect Mrs. X’s interests in this situation?
The intentional abuse/incapability paradigm cannot coherently respond to Mrs. X’s dilemma; the dilemma of the capable yet vulnerable adult, who incurs real harm or loss in situations not easily read as deliberate theft or abuse. As the story of Teresa X unfolds, the relationship changes, and it becomes apparent that the grandson’s intentions may be elusive even to himself (he does love his grandmother and realises he is in the way; he believes in the “business opportunity” and sees it as a way to help them both).
Equity provides a more realistic conceptual framework for understanding and responding to the dilemma of Teresa X; that in the context of certain relationships “decisions” to give another person access to your money or property are not freely chosen at all, albeit it is not possible explain events with reference to a “theft” or intentional “abuse”. The objective of law’s intervention in this kind of situation is not to punish grandson, or to determine that Teresa X is no longer capable of looking after herself, but to protect Mrs. X’s interests in a situation in which she cannot do so herself.
A definition of material exploitation as the use of an older person’s assets for personal benefit in circumstances where the older adult’s ability to consent to that benefit is impaired situates material exploitation within this analytical framework. Impaired consent might result from coercion or deception, and obviously there is no consent where theft has occurred. Impaired consent may also be a consequence of the lack of capacity or capability, or might also arise through the dynamics of the relationships itself, as explained in an undue influence analysis. The focus on consent, as opposed to intentional wrongdoing, captures a more complete and realistic range of situations recognisable as material exploitation. The theoretical mechanism of the presumption of undue influence, in particular, captures realistically the nature of the problem (as in the Teresa X hypothetical) and explains why, as a matter of public policy, intervention is justified in these situations (in Lloyd’s Bank v Bundy, discussed below).
“In everyday life people constantly seek to influence the decision of others”;[12] this is the stuff of human engagement and not normally the business of the courts. In certain situations, however, the courts have recognised that influence can be overly powerful so as to create inequity where the benefits obtained through its exercise are retained. Where influence has been overly powerful in this sense, it has been “abused” for the purposes of equity. Intent is not a necessary element of abuse within this conceptual framework although sometimes undue influence is, in fact, exercised intentionally. Undue influence, together with unconscionability, is sometimes referred to as the doctrines of equitable fraud.
Unlike the doctrine of unconscionability, undue influence is a “plaintiff sided doctrine”;[13] the focus of inquiry is on the experience of the plaintiff and his or her ability to truly consent. The objective of the doctrine of unconscionability, by contrast, is to prevent individuals from benefiting through the deliberate exploitation of power imbalance, as where a buyer takes advantage of the seller’s relative weakness. In Hall v Grassie,[14] for example, the seller was an 85 year old woman in poor health who lived apart from her family in a nursing home. The case describes her physical health as poor, and her “capacity to decide anything… limited at best.”[15] Prior to moving into the nursing home, the woman had lived in the same house since the 1920s. She had no realistic conceptualisation of current property prices. The defendants purchased the property at a price far below market value, a fact which they must have appreciated (the couple is described in the case as “much younger, healthier, active and experienced in real estate transactions.”)[16] The transaction was set aside as unconscionable.
The case of Lott v Angellucci[17] also involved an older seller (a man in his seventies) in ill health, suffering from severe depression, and worried about his future ability to take care of himself. The seller sold his house to a younger acquaintance at a price considerably below market value, on the basis that he could continue living in the house until his death. The seller subsequently regretted the sale, and asked the court to set it aside. At trial, the court agreed, setting the transaction aside as unconscionable after describing the seller as “a sick, confused and worried old man. He made a foolish bargain to which he should not be held.”[18] The Court of Appeal reversed that decision. The seller was not desperate for money, nor was he so ill that he could not have remained independently in his home, at least for the time being. He had received advice that the price was below market value and that he should not proceed, but had chosen to disregard that advice. The seller had in this case been the aggressor; he had approached others about buying his house before the purchaser agreed. The purchaser was in many respects stronger than the seller, but the necessary power relationship did not exist between them; the bargain in this case was bad, but not inequitable.
Undue influence, by contrast, is concerned not with intentional exploitation by the defendant but with the integrity of the plaintiff’s consent. For this reason the intention of the influence-er is not directly relevant. Undue influence may in fact be exercised intentionally, but it may also exist independent of intention, in situations where the influence arises by reason of the relationship between the parties.
Intentional undue influence can be ascertained through the behaviour of the influencer, as coercion, threats, or manipulation (isolating an individual from others and lying to advance one’s interests, for example).
Unintentional undue influence, arising through the dynamics of the relationship itself, cannot be ascertained through similar external signs. The mechanism of presumption is used in these circumstances: the law presumes that where one person benefits another in the context of certain relationships that benefit is the result of undue influence. The presumption may then be displaced where the one receiving a benefit is able to establish true consent on the part of the conferrer.
A presumption of undue influence will always arise in certain kinds of relationships: doctor and patient, lawyer and client, priest and parishioner, for example. A presumption of undue influence may also arise in other, “infinitely more various” kinds of relationships depending on their particular circumstances. The Supreme Court of Canada described the definitive characteristic of these relationships as the “potential for domination” inherent in the relationship itself.”[19] Although these relationships are various and must be assessed on an individual basis, dependence will often be a key factor. Dependence may have a physical dimension, but may also be primarily emotional in character.
In Zed v Zed,[20] for example, the plaintiff was an extremely elderly widow who spoke no English. She was also illiterate. For years she had relied on one son as her link to the outside world, including the day to day management of property she owned. When this son unexpectedly dies, a second son assumed his role. The Court agreed that this son’s behaviour towards his mother and attention to her needs had been exemplary, and was “completely satisfied” that the son had acted in accordance with what he considered to be his mother’s best interests.”[21] He was indeed the model of the good son (described by the court as “honest, reliable, very reserved and anything but aggressive and demanding”).[22] During this period, the mother transferred ownership of an apartment building she owned to the son, explaining that she wanted him to have the property because he was going to take care of her. She now claimed it back, on the basis that her consent to the transfer had been impaired by reason of undue influence. The court agreed, finding that “the relationship between mother and son in this present case was clearly one of particular confidence and trust”[23] so as to raise the presumption of undue influence. That presumption would have been rebutted by evidence that the mother received competent and independent advice about the nature and effect of the transaction, but she did not.
Gammon v Steeves[24] also concerned a dutiful defendant, a niece who had provided care to her elderly aunt and uncle after they have moved to Canada from the United States. During the course of this caregiving relationship, the older couple transferred property to the niece and her husband. After the aunt’s death, the uncle sought to have the transfers set aside on the basis of undue influence. The Court of Appeal found that the relationship of dependency existing between the parties was such as to raise the presumption of undue influence. That presumption had not been rebutted. The Court “[came] to this conclusion… reluctantly… because it is clear that both Mr. and Mrs. Steeves spent considerable time and energy caring for Mr. and Mrs. Gammon when no other relative was willing to do so. But this only points up the caution with which people must act when they receive gifts in these circumstances.”[25]
The effect of the presumption of undue influence in relationships of dependence is to place a responsibility on the stronger party to ensure that the decision to benefit him or her has been freely taken. The court “interferes not on the ground that any wrongful act has been committed by the donee but on the ground of public policy and to prevent the relations which existed between the parties and the influence arising therefore from being abused” as Sir Erich Sachs explained in Lloyd’s Bank v Bundy.[26] Relationships of potential domination giving rise to a presumption of undue influence are assumed to be private and, by definition, the weaker party is unable, by reason of that relationship, to protect his or her own interests. The dominant party in the relationship is presumed to be the only individual in a position to safeguard the interests of the weaker, and it is therefore right and justified that he or she be required to do so as a condition of receiving benefit. The “abuse” of influence described by Sir Sachs in the passage above (quoting from the judgment of Lord Justice Cotton in Allcard v Skinner)[27] refers to the failure of the dominant person in the relationship to carry out this responsibility; “that word in the context means no more than that once the existence of a special relationship has been established, then any possible use of the relevant influence is, irrespective of the intentions of the persons possessing it, regarded in relation to the transaction under consideration as an abuse- unless and until the duty of fiduciary care has been shown to be fulfilled or the transaction is shown to be truly for the benefit of the person influenced. This approach is a matter of public policy.”[28] “Fiduciary” here refers to the confidential nature of the relationship, and not to any otherwise existing category (“it is neither feasible not desirable to attempt to closely to define the relationship, or its characteristics, or the demarcation line showing the exact transition point where a relationship that does not entail the duty passes into one that does.”)[29]
The presumption of undue influence is perhaps especially likely to apply in the context of inter-generational family relationships. Lord Browne Wilkinson described the relationship between “aged parent” and adult child as one of those in which the presumption was especially likely to arise, by reason of the emotional and psychological ties typically involved in that relationship.[30] Transactions between family members were also more likely to informal, and less likely to involve external advisors. For these reasons, he advised, courts should treat the question of whether the presumption arose with a ‘special tenderness,” as a class in which undue influence was more likely (although necessarily) a factor. Physical or other kinds of dependence (as where an English speaking son, daughter or other relative acts as the non-English speaking older person’s interpreter) will work to increase the likelihood that the presumption will arise. It is important to note that the presumption will not be justified in the context of every intergenerational relationship where assistance or care is provided by the younger person to the older. Where the older person is the dominant figure in the relationship by reason of personality and inter-personal dynamics the presumption will not arise. Calumsky v. Karaloff,[31] Kits Estate v. Peterson,[32] Zabolotney Estate Committee v. Szyjak,[33] Scott v. Clancy,[34] and Tracy v. Boles[35] are all cases in which an older transferor trusted, was grateful to, and in some respects depended on the transferee but where the older person was the dominant figure in the relationship.[36]
To sum, the categories of equitable fraud (unconscionability, intentional undue influence, and presumed/unintentional undue influence arising out of relationship dynamics) capture realistically the range of situations in which the use of an older person’s money or property is troubling (because it is inequitable or unfair) and intervention is justified. “Material exploitation” more accurately describes this range than the conceptually limited language of “financial abuse” bearing in mind that “exploitation” here refers to the experience of the older adult and not the intentions of the “exploiter” (although that experience may, in certain cases, be brought about by intentionally exploitative conduct, in which criminal charges will be justified).
As the case law shows, the presumption does not work so as to inevitably cast the older party as the weaker or dominated one, avoiding a simplistic (and unrealistic) age = vulnerability formula. Lord Browne Wilkinson’s articulation of a “special tenderness” for older people in the family context avoids that formula while acknowledging the general impact of age and inter-generational dynamics which make it more likely that the presumption of undue influence will arise. Legislation applying to “vulnerable persons” may be read as incorporating this pragmatic “special tenderness” approach; people of all ages and personal characteristics may experience material exploitation, but members of certain defined groups are more likely to do so. Special rules, in the form of legislation that facilitates intervention and redress for members of these groups in cases where material exploitation has in fact occurred.
The language of “protection,” when applied to older adults, is certainly unfashionable, treated as antithetical to core human rights values of autonomy and self-determination. Yet, at the same time, the safety and security of vulnerable older adults in the “grey zone,” the capable but vulnerable, is increasingly recognised as a significant social problem. The intentional abuse paradigm incorporated in the criminal and modern adult protection paradigms avoids that apparent dilemma by focusing on a perpetrator, and not the older adult. From this perspective it is not necessary to consider why the older person is not “in need of protection”; action is or is not justified with reference to the intentions and conduct of the other.
The problem with this approach is that it works to exclude many situations, like that described in the story of Teresa X, which may legitimately attract concern. The difficulty of the task is clear, however; where no wrongdoing on the part of a perpetrator can be shown, intervention may be justified only with reference to Mrs. X herself. The “old” paternalistic approach has been to use the “all or nothing” approach of competence to intervene (i.e. a finding of Mrs. X’s incompetence, generally followed by her removal to a care facility). Non-interventionist (preferring the least intrusive alternative) adult guardianship legislation allows for a more subtle, graduated approach to capability or competence,[37] but (with this important distinction) the basic framework remains the same: one line of inquiry focused on “abuse” situations defined with reference to the intentional misconduct of the abuser, another line of inquiry (where the “abuse” characterisation does not apply) going to the decision making capability of the individual.
The consent focused undue influence paradigm occupies a distinct middle ground between generally accepted definitions of “abuse” and “capacity” and, indeed, can be characterised in terms of either one (“abuse” as the benefit to one at the expense of another without that person’s consent, “capacity” with reference to the situational impairment of the ability to consent to, or refuse, the conferral of a benefit on another. The circumstances of the transaction (and not the individual) are the subject of characterisation as inequitable (or not); the interests of the individual in this situation are protection by reason of that inequity and not because of his or her underlying status as “in need of protection” per se.
Is it necessary, possible, or desirable to give equity’s conceptual framework legislative expression for the protection of the rights and interests of the capable but vulnerable older adult? As private law civil actions initiated by the older adult or by his or her estate (the frustrated would-be heirs) undue influence and unconscionability have obvious limitations in terms of current usefulness. Older adults are relatively unlikely to access the law in general;[38] this is especially the case where other family members are involved. Furthermore, research undertaken by Professor Fiona Burns in Australia indicates that older adults are required to meet a particularly “high threshold” in cases of inter vivos undue influence,[39] although the “special tenderness” theory articulated in Barclay’s Bank suggests otherwise, and it has elsewhere been noted that “courts have not been hesitant in finding that a relationship giving rise to a presumption exists where the dominant relationship is that of a child and an aged or infirm parent.”[40] Regardless of whether or not an implicit “special tenderness,” or something like its opposite (as Prof. Burns concludes) currently applies, incorporating the conceptual framework of equitable fraud within adult protection legislation expands the circumstances in which vulnerable individuals like Teresa X can access assistance, or allow other concerned individuals to facilitate “intervention” into her situation.
Prof. Burns refers with approval to the state of Maine’s codification of a presumption of undue influence in the Maine Revised Statutes,[41] stating that a presumption of undue influence arises where an elderly dependent person has transferred real estate pr undertaken a major transfer of personal property or money [representing 10% or more of the elderly dependent person’s estate] for less than full consideration to a person falling within a set of particular kinds of relationships, including family and fiduciary relationships. The transfer may then be set aside unless the older adult was represented in the transfer by legal counsel. Professor Burns identifies as a “significant limitation” the requirement that the older adult be “dependent,” although she notes that the requirement is fulfilled by partial dependence (where a person aged 60 or older is “wholly or partially dependent upon one or more other persons for care and support”), and concludes that legislation of this kind would make it more likely to that older adults would succeed in having inequitable transfers set aside.[42]
The Maine legislation is a relatively straightforward codification of the equitable rule, intended to apply narrowly to financial transactions and thereby excluding other forms of material exploitation. A more radical incorporation of equity’s conceptual framework, implicitly collapsing the traditional categories of “abuse” and “capacity,” underlies important sections of the adult protection framework outlined in the 2000 UK Department of Health policy document No secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse. The category of “vulnerable persons” includes but is not limited to older adults and, (unlike the Maine legislation) includes no age marker; the “vulnerable adult” is broadly defined as a person “who is or may be in need of community care services by reason of mental or other disability, age or illness; and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation.”[43] Regarding capacity and decision making, the document states that the vulnerable adult’s emotional, physical, intellectual and mental capacity in relation to self-determination and consent and any intimidation, misuse of authority or undue influence will have to be assessed.”[44] [italics mine]
“Violation of an individual’s human or civil rights by another person or persons” is given as a “starting point” for a definition of “abuse,” recognising that “the term ‘abuse’ can be subject to wide interpretation.”[45] “Abuse” justifying intervention would include not only ill treatment but also “the impairment of, or an avoidable deterioration in, physical or mental health, and the impairment of physical, intellectual, emotional, social or behavioural development.”[46] “Financial or material abuse” in particular is defined as “including theft, fraud, exploitation, pressure in connection with [my italics] wills, property or inheritance or financial transactions, or the misuse and misappropriation of property, possessions, or benefits” which “may be perpetrated as the result of deliberate intent, negligence or ignorance.”[47]
The Labor government’s 2005 Green Paper (Independence, Well Being and Choice: Our Vision for the Future of Social Care for Adults in England) “reaffirms” No secrets as a “pillar” of adult protection while effectively subsuming the specific problem of ‘elder abuse’ within an “overarching policy and legislative framework of social care generally.”[48] Indeed, the Green Paper agenda is (in explicit terms) both post-elder and post-abuse; “ abuse” is considered only incidentally and with reference to No secrets, elders” as a category are not referred to at (although Tony Blair’s Forward to the Green Paper does refer at length to the aging population).
The No secrets approach appears to share with the conceptual framework of equitable fraud a “plaintiff-sided” focus on personal inability to protect one’s own interests by reason of impaired consent and the experience of pressure (as in an undue influence analysis) as opposed to an exclusive focus on intentional wrongdoing on the part of an abuser/perpetrator. By opening up ideas of “abuse” and “protection” to include a situational “plaintiff-sided” analysis the No secrets framework more closely resembles reality in the “grey zone” of vulnerability for many older adults, in which the traditional categories of “competence” and “abuse” lose coherence.
The current trend in Canadian legislation is to deal with the problem of elder abuse, including financial or material abuse, in the context of adult protection or adult guardianship legislation. While the facts comprising “abuse” (as defined in the legislation) may also give rise to criminal charges, the definition captures a wider range of circumstances than the criminal offence and provides for individualised response that is focused on supporting the older adult through services and assistance. This paper suggests that financial or material abuse as defined in this support-oriented legislation is too narrow still, excluding a wide range of situations justifying intervention in the form of support and services and, where necessary, legal intervention to set aside property and/or financial transactions.
Outside of intentional abuse situations, legal intervention on behalf of older adults in vulnerable situations has been carried out through capacity assessment. The Canadian non-interventionist development has focused on the inappropriateness of the “all or nothing” capacity assessment at this stage, which may have the effect of “protecting” the older adult at the expense of his or her identity as a capable human being (with total loss of autonomy to follow). The non-interventionist, least-intrusive alternative is to posit instead a graduated theory of decision-making and capacity. The essential framework remains unchanged, however: the “defendant sided” (focused on the conduct of the abuser) question of abuse on the one hand, and the “plaintiff sided” inquiry into the (graduated) competence of the older person, on the other.
The equitable alternative framework would collapse the “abuse”-“capacity” paradigm altogether, setting out a consent-based framework for protecting the interests of individuals who are situationally unable to do so alone.[49] Intentional abuse by both professional predators and by intimates- friends and family members- is, of course, not illusory, and must be redressed. The problem of “equitable fraud,” neither abuse nor incapacity but justifying protective intervention, is much broader, however. It too must be redressed, through a legislated response that includes (adequately funded) legal intervention to set aside inequitable transactions in addition to the provision of services, along with measures aimed at the problem of unwanted residence.
The “daunting task” of defining “financial abuse” in the context of intimate relationships has been identified as a key reason why this type of elder abuse has been so challenging for law reformers and for law enforcers.[50] “In a relationship in which one person is likely to want to give and the other is likely to feel an entitlement to receive, how can the law identify improper transactions?”[51] The apparent intractability of the problem lies in the question itself; the conceptual framework of “abuse” simply cannot be made to fit the reality of material exploitation. The new task is to develop a broader, “plaintiff-sided” definition of material exploitation situated squarely within the conceptual framework of equitable fraud.
[*] Ass Professor, Faculty of Law, University of British Columbia, Vancouver, B.C., Canada. The author would like to thank the Law Foundation of British Columbia for its contribution to this research.
[1] This schema from Abuse and Neglect of Older Adults: A Discussion Paper (Ottawa: Public Health Agency of Canada, 2005).
[2] See, S. Moskowitz (1998) “Saving Granny from the Wolf: Elder Abuse and Neglect- the Legal Framework” 31 Conn. L. Rev. 77.
[3] C. Dessin, (2000) “Financial Abuse of the Elderly” 36 Idaho L. Rev. 203 at 205.
[4] See, C. Spencer (1996) “Diminishing Returns: An Examination of Financial Abuse Among Seniors” Gerontology Research Centre, Simon Fraser University, Vancouver, B.C, Canada.
[5] See C. Tilse, J. Wilson, D. Setterlund, G. Robinson “Families, Asset management and caregiving: Developing issues in policy, research, and practice” Paper given at the 8th Australian Institute of Family Studies Conference, February 2003 (Symposium: Assets, aging and abuse- emerging issues for families).
[6] McDonald, P.L., Hornick, J.P., Robertson, G.B. and Wallace, J.E. Elder Abuse and Neglect in Canada (Toronto: Butterworths, 1991).
[7] R. Gordon “Material abuse and powers of attorney in Canada: A preliminary examination (1992) Journal of Elder Abuse and Neglect Vol. 4 173 (definition cited in Abuse and Neglect of Older Adults: A Discussion Paper, supra note 1); Health and Welfare Canada Community Awareness and Response: Abuse and Neglect of Older Adults (Ottawa: Health and Welfare Canada, 1993). See also (definitions cited in the PHAC Report) McDonald L. “Abuse and neglect of elders” in J.E. Birren, ed. Encyclopedia of Gerontology: Age, Aging and the Aged (San Diego, CA: Academic Press, 1996) and NCEA What is Elder Abuse: What are the major types of Elder Abuse? above note 1.
[8] R.S., c. C-34, s. 291. The offence provides that “Every one commits theft who, being entrusted, whether solely or jointly with another person, with a power of attorney for the sale, mortgage, pledge or other disposition of real or personal property, fraudulently sells, mortgages, pledges or otherwise disposes of the property or any part of it, or fraudulently converts the proceeds of a sale, mortgage, pledge or other disposition of the property, or any part of the proceeds, to a purpose other than that for which he was entrusted by the power of attorney.” The author was able to find only one case considering the offence, R. v. Chouinard, decided in 1874, 4 Que. L.R. 220 (C.A.), holding that the “power of attorney” referred to in the section referred to written and not verbal powers.
[9] R.S.B.C. 1996, c. 6.
[10] See also the Adult Protection and Decision Making Act, S.Y., c. 21, Part 4, section 58.
[11] Adult Protection Act, R.S.N.S. 1989, c. 2 section 3; Adult Protection Act, R.S.P.E.I. 1988, c. A-5.
[12] Royal Bank of Scotland v. Etridge[2001] UKHL 44; , [2001] 4 All E.R. 449 (H.L.) at 1.
[13] Defining undue influence as distinct from unconscionability (a question of “impaired consent” as opposed to “wicked exploitation”) Birks and Chin refer to undue influence as a “plaintiff sided” doctrine, the application of which turns on the experience of the plaintiff as opposed to the conduct of the defendant. See, Birks and Chin, “On the Nature of Undue Influence” in Good Faith and Fault in Contract Law Beatson and Friedman, eds., (1995: London, UK).
[14] (1982), 16 Man. R. (2d) 399 (Q.B.).
[15] Ibid., at para. 25.
[16] Ibid., at para. 32.
[17] (1982), 36 B.C.L.R. 273 (C.A.).
[18] Ibid., at para. 19.
[19] Geffen v Goodman Estate, [1991] 2 S.C.R. 353
[20] (1980), 28 N.B.R. (2d) 580 (QB).
[21] Ibid., at para. 22.
[22] Ibid.
[23] Ibid., at para. 32.
[24] (1987), 83 N.B.R. (2d) 397 (C.A.).
[25] Ibid., at 412.
[26] [1974] 3 All E.R. 757 (C.A.).
[28] Supra note 26.
[29] Ibid.
[30] Barclay’s Bank v O’Brien[1993] UKHL 6; , [1994] 1 A.C. 180 (H.L.). See also Avon v Bridger, [1985] 2 All E.R. 281 (C.A.).
[32] (1994), 161 A.R. 299 (Q.B.).
[33] (1980) 5 Man. R. (2d) 107 (Q.B.).
[34] [1998] W.W.R. 446 (Sask. Q.B.).
[35] [1996] B.C.J. No. 52 (S.C.).
[36] See also, Re Brocklehurst, [1978] 1 All E.R. 767 (C.A.); Shortell v. Fitzpatrick, [1949] O.R. 488.
[37] See Part 2 of the Adult Guardianship Act (Decision Makers, Guardians and Monitors), supra note 9; Part 2 has yet to be brought into force.
[38] See R. Munro (2002) “Elder Abuse and Legal Remedies: Practical Realities” 81 Reform 42.
[39] “Undue Influence Inter Vivos and the Elderly” [2002] MelbULawRw 27; 26 Melb. U. L. Rev. 499 at 512
[40] Kovach v. Beardsley, [1991] 6 W.W.R. 113 (Alta. Q.B.).
[41] 33 ME REV STAT ANN (West) δ 1022(1)(2001).
[42] Prof. Carolyn Dessin also concludes that something like a legislated presumption of undue influence would be helpful, although she does not name it as such; supra note 3 at 225.
[43] At para. 2.3.
[44] At para. 6.21.
[45] At para 2.5.
[46] At para. 2.18.
[47] At para. 2.7. Information suggesting abuse might come from a variety of sources (the vulnerable person him or herself, a concerned relative, a member of staff in a facility) and in various forms (a complaint, an expression of concern, a matter ‘come to light” during a needs assessment). “Action” would include a range of multi-agency responses, both supportive and therapeutic or punitive where warranted.
[48] Phil Slater “Elder abuse, adult protection and social care: developments in New Labour policy” The Journal of Adult Protection v. 7, no.3.
[49] This conceptual framework is implicit in the No secrets/Green Paper approach, focusing on situations requiring intervention to safeguard the interests of vulnerable individuals.
[50] C. Dessin, supra note 3 at 210.
[51] Ibid., at 213. Answering her own question, Prof. Carolyn Dessin concludes (after a review of the case law) that judges “ratify transactions they view as ‘normal’ and invalidate those they perceive as ‘abnormal’.”
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