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2. Elder Abuse – Prevalence, Identification, Response and Intervention….. Beyond the Basics Judith Wahl Advocacy Centre for the Elderly wahlj@lao.on.ca

3. 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 2009

4. Advocacy Centre for The Elderly • 2 Carlton Street, Suite 701Toronto, OntarioM5B 1J3 • Tel - 416-598-2656 • Fax - 416-598-7924 • Email wahlj@lao.on.ca • Website * NEW www.acelaw.ca Advocacy Centre for the Elderly 2009

5. 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’ Advocacy Centre for the Elderly 2009

6. 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 Advocacy Centre for the Elderly 2009

7. * 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? Advocacy Centre for the Elderly 2009

8. 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 Advocacy Centre for the Elderly 2009

9. 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 Advocacy Centre for the Elderly 2009

10. 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 Advocacy Centre for the Elderly 2009

11. 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 Advocacy Centre for the Elderly 2009

12. Abuse of Power - What is it? Advocacy Centre for the Elderly 2009

13. Abuse of Power- What is it? Advocacy Centre for the Elderly 2009

14. 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 Advocacy Centre for the Elderly 2009

15. Examples of Situations that can be called abuse that ACE has assisted Seniors with Title 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. Advocacy Centre for the Elderly 2009

16. 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. Advocacy Centre for the Elderly 2009

17. 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 Advocacy Centre for the Elderly 2009

18. 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 Advocacy Centre for the Elderly 2009

19. Abuse Case Examples Cont’d • 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. Advocacy Centre for the Elderly 2009

20. Abuse Case Examples Cont’d • 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. Advocacy Centre for the Elderly 2009

21. Abuse Case Examples Cont’d Problems 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 Advocacy Centre for the Elderly 2009

22. 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) Advocacy Centre for the Elderly 2009

23. 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. Advocacy Centre for the Elderly 2009

24. 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 Advocacy Centre for the Elderly 2009

25. 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 Advocacy Centre for the Elderly 2009

26. 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 Advocacy Centre for the Elderly 2009

27. *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? Advocacy Centre for the Elderly 2009

28. 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 Profiles of Victims and AbusersWhat the Literature Says… VICTIMS may … ABUSERS may … Advocacy Centre for the Elderly 2009

29. 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 Advocacy Centre for the Elderly 2009

30. 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 Advocacy Centre for the Elderly 2009

31. 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 Advocacy Centre for the Elderly 2009

32. 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 Advocacy Centre for the Elderly 2009

33. *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? Advocacy Centre for the Elderly 2009

34. 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 Advocacy Centre for the Elderly 2009

35. 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 Advocacy Centre for the Elderly 2009

36. 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 Advocacy Centre for the Elderly 2009

37. *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? Advocacy Centre for the Elderly 2009

38. 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 Advocacy Centre for the Elderly 2009

39. 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 Advocacy Centre for the Elderly 2009

40. 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 Advocacy Centre for the Elderly 2009

41. 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 Advocacy Centre for the Elderly 2009

42. 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 Advocacy Centre for the Elderly 2009

43. * 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? Advocacy Centre for the Elderly 2009

44. 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 Advocacy Centre for the Elderly 2009

45. Needs of Victims (1) • 1. To Stop the Abuse • 2. Safety, Shelter • 3. Financial Resources • 4. Home Support Services/Housing Alternatives Advocacy Centre for the Elderly 2009

46. 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 Advocacy Centre for the Elderly 2009

47. 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 Advocacy Centre for the Elderly 2009

48. 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 ?? Advocacy Centre for the Elderly 2009

49. 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? Advocacy Centre for the Elderly 2009

50. 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???? Advocacy Centre for the Elderly 2009