Elder abuse, U ndue influence best practices

1. Elder abuse, Undue influencebest practices Fraser Valley Estate Planning Council Sept 17th , 2013 Mary-Jane Wilson

2. What is Elder Abuse? • Acts of Violence • Forced sexual contact • emotional and psychological abuse • Neglect • Abandonment • Illegal or improper use of an older person’s funds, property or assets

3. Illegal or improper use of the older persons funds or property Financial abuse • This includes: • forging the older person’s signature • Stealing money or possessions, • Tricking the older person into signing documents that transfer funds, property or assets • using a person’s money or property without permission or in a fraudulent manner

4. Financial Abuse • Typically involves a family member or another person whom the adult trusts • Financial abuse can occur when a family member or friend takes over decisions and control of the older adult’s money • Family member or friend controls the money and misuses the money or power of attorney

5. Risk of Elder Abuse • Seems highest when their adult children live with the older person • Social isolation • Caregivers and family members who live with an older person have an opportunity to abuse and often attempt to isolate the older person from others to prevent the abuse from being discovered

6. Risk of Elder Abuse • Signs of financial exploitation include: • sudden changes in a bank account or banking practice, such as unexplained withdrawals of large amounts of money, additional names on older person’s bank account • Abrupt changes in a will or other financial document • Disappearance of funds or valuable possessions

7. Risk of Elder Abuse • Unpaid bills or substandard care despite the availability of funds • Evidence of the older person’s signature being forged • Sudden appearance of previously uninvolved relatives

8. Physical, Psychological, behavioral characteristics of the older person • The following may make the older person more dependant on others and possibly increase the opportunity for undue influence: • Impaired vision, hearing, mobility and speech • Physical characteristics that may indicate illness

9. Isolation • Resulting in dependence on another person to meet physical, emotional, financial and other needs • Relatives who keep others away from the older person or relocate that person to a different community where the older person has fewer or no connections

10. Circumstances relating to the making of the will and terms of the Will • Unusual gifts in the will to a recent or casual acquaintance • Wills instructions from a third party that appear to benefit the third party • Beneficiary designations from a third party that appear to benefit the third party

11. Undue influence • Is a legal doctrine and a form of financial abuse • Operates in one of the following ways: • Exploiting dependencies • Abusing relationships of trust and confidence • Emotional manipulation • Isolating the victim

12. Undue influence • Victim often elderly • Also impaired individual of all ages can result in increased susceptibility to pressure and manipulation • Impaired mental function can result from many causes including injury, mental disorder, developmental disorder or substance abuse

13. Undue influence common tactics • Controlling the information flow to the victim and misinformation • E.g. the influencer may poison the mind of the victim by supplying false information regarding the character or the intentions of the family members • When this is combined with isolation of the victim to cut off other sources of information, the influencer is in an ideal position to manipulate the victim

14. Characteristics of influence in the older person’s family • Influence in the older person’s family: • Being overly helpful • Insisting on being present when the wills instructions are being taken • Overly controlling attitude towards the older person noted by the practioner

15. Financial Planner, Investment Adviser or Banker • Same criteria applies when making testamentary documents like: • RRSP/RRIF’s • TFSA’s • Life insurance designations • Joint bank accounts or investments

16. Red Flags of Undue Influence • A caregiver or member of the family who benefits disproportionately • An overly helpful neighbour or friend • Perception that a person or friend professing emotional attachment to the older person is actually pursuing the older person for material benefit • a “suitor” who is significantly younger that the older adult

17. “Gut Feeling” that influence is going on • Body language • Mannerisms of the older adult indicates fear, anxiety, insecurity, reticence, evasiveness or embarrassment • A person (potential influencer) who is off putting or difficult to deal with accompanies the older person to the appointment with the lawyer, financial adviser, banker

18. Screening for potential undue influence • Basic rule: interview the older person alone • If instructions taken through another source, always confirm directly with the older person in a thorough and comprehensive interview conducted in private • Relative should not serve as an interpreter unless this is completely unavoidable • Explain why the client must be interviewed alone

19. Screening for potential undue influence • 4 “C’s • client identification • must be absolutely clear for whom you are acting • Conflict of interest • it is necessary to avoid a joint retainer or the appearance of a joint retainer • confidentiality • Communication with the client must be confidential

20. Screening for potential undue influence • Competency • Speaking with the client privately and unassisted allows you to evaluate the capacity to give instructions and form an opinion as to whether there is any question of capacity

21. If Red Flags are Present • Ask non leading questions to determine what factors are operating on the older person’s mind • Ask “open ended” questions • “How did you decide to divide your estate this way?” • “What was important to you in deciding to divide your property this way?” • “What led you to the decision to make {name} your executor

22. If Red Flags are Present • Explore whether the older person is in a relationship of dependency, domination or special confidence or trust that could provide an opportunity for undue influence • E.g. Do you live alone? With family? With a care giver? a friend? • Do you have to get help for everyday tasks? • Are you able to speak privately with anyone you wish to see?

23. If Red flags are present • Who arranged this visit? ( to the lawyer or financial adviser) • Does anyone help you make decisions? • Has anyone told you that you should reward him/her for the things that he/she does for you? • Answers to these questions may point to the involvement of an other person in the client’s financial and legal affairs, and the nature of that involvement

24. If Red Flags present • Explore whether the client is a victim of abuse in other contexts • Is the client a victim of physical, psychological or financial abuse? • Ask questions like: has anyone ever hurt you? • Have you ever signed any documents that you didn’t understand? • Are you able to see people you enjoy spending time with and do the things you wish when you want to do them?

25. If Red Flags are present • If you believe the older person is in imminent danger, under section 46(1) of the Adult Guardianship Act you may report abuse or neglect of an adult to a designated agency if the adult is unable to seek support and assistance on his own, due to physical restraint, physical disability limiting the ability to seek help, or an illness, disease, injury or other condition affecting the ability of the adult to make decisions about abuse or neglect

26. If Red Flags present • If the physical or financial abuse is of a criminal nature the matter can be reported to the police • The Public Guardian and Trustee of BC also has investigative powers with respect to financial abuse that may be exercised in certain circumstances • Each year the Public Guardian and Trustee receives more that 1500 reports resulting in an average of 1100 investigations

27. Medical Assessment • If capacity is in question obtain a medical assessment

28. Compile list of events • If suspicions mount: • Compile a list of events described by the older adult and others that are indicative of undue influence in order to substantiate your conclusion • Retain detailed notes of your interview of the older adult • Even if you don’t proceed you should keep the file for the period recommended by your governing body

29. Wills notice if making a will • Good idea to file a wills notice with the clients consent • This will help to make the existence of the will known to those who need to be aware of it if the client signs a later will that is challenged on the grounds of undue influence

30. If suspicion remains high after reasonable investigation • In the case where there are several red flags you need to weigh the seriousness of the level of suspicion against the prospect that your document may subsequently be held to be invalid • If more probable that the document will be held to be invalid do not proceed • Not improper to inform the older person of the resources available in the community for assisting victims of financial, emotional or other abuse when explaining the reasons for your decision not to proceed.

31. How can you reverse suspected Financial Abuse? • If the older adult is capable, set up a new power of attorney and revoke an old one • Set up separate bank accounts allow the older adult to have some funds in their name and transfer the bulk of the assets into another bank account that they don’t have immediate access to so that others cannot take them to the bank and withdraw

32. Strategies to Combat Undue influence • If the power of attorney is at the bank only and the attorney is abusing the situation, set up a bank account elsewhere and prepare an enduring power of Attorney so that the abuser won’t have access • Contact the Public Guardian and Trustee and have them investigate

33. Strategies to combat Undue Influence • File a caveat on the land title • Section 282(2.1) of the Land title Act gives attorneys the right to file a caveat if they believe that the property is or may be in danger • Caveats expire in 2 months unless placed by the Public Guardian and Trustee or a committee • Don’t “notarize” transfers without giving legal advice

34. If you choose to proceed • Prepare an opinion letter advising against the transaction if the client wants to proceed against your recommendation • Obtain a doctor’s letter confirming capacity • Include additional provisions in the agreement that gives a bit more protection than what might have been without your involvement

35. A Shift of the Onus of Proof (WESA s. 52) • WESA comes into force on March 31, 2014 • Introduces a shift in the onus of proof in relation to undue influence challenges to wills • Someone may challenge a will alleging that it does not reflect the true wishes of the will maker, but as a result of undue influence by a third party. • If established the will is void

36. The onus currently • Currently the onus of proving undue influence affecting a will always falls on the challenger • Can be difficult to establish when the facts are only known to the will maker, now deceased • Section 52 of WESA reverses that onus, in certain circumstances

37. Under S. 52 WESA • If the challenger establishes that a third party was in a relationship of potential domination or dependence of the will maker, the onus now shifts to the party seeking to defend the will to prove that no undue influence was exercised by the third party • This shift may result in an increase in undue influence challenges

38. When drafting wills • Expect to be called as a witness in the ensuing litigation • you may be compelled to testify about the facts and circumstances surrounding the making of the will and to produce your file • If you haven’t kept adequate notes and failed to take reasonable steps to ensure the will reflects the will maker’s genuine wishes, you make be at risk

39. Best Practices: A guide and Reference Aid • Prepared by the BC Law Institute • Excellent reference aid summarizing the recommended practices, with a checklist, flow chart and red flags • Available on the law society of BC’s website

40. Thank You