Responding to elder abuse

Elder abuse includes financial and non-financial abuse and neglect. Often, where there is financial abuse, other abuse is occurring. B.C.’s Adult Guardianship Act defines abuse as “the deliberate mistreatment that causes physical, mental or emotional harm, or damage to or loss in respect of the adult’s financial affairs.” Neglect includes self-neglect. It is “any failure to provide necessary care, assistance, guidance or attention if that failure causes, or is reasonably likely to cause, within a short period of time, serious physical, mental or emotional harm, or substantial damage or loss in respect of the adult’s financial affairs.”

In B.C. there are three options for reporting abuse and neglect, depending on the concern and the adult’s mental capability. Suspected criminal offences can be reported to the police. Part 3 of the Adult Guardianship Act also provides for confidential reports to be made to a Designated Agency. When adults are abused or neglected and cannot seek assistance on their own, a Designated Agency will investigate, offer support and assistance, report crimes to the police and, where financial abuse is suspected, refer concerns to the Public Guardian and Trustee of B.C. for a more detailed investigation. 

The Public Guardian and Trustee of B.C.’s authority to investigate reports of abuse and neglect is found in the Public Guardian and Trustee Act. The Public Guardian and Trustee of B.C. can also receive reports pursuant to the Power of Attorney Act and the Representation Agreement Act. Public Guardian and Trustee of B.C. investigations are guided by the Adult Guardianship Act principles – a presumption of capability, respect for an adult’s right to self determination and the least intrusive response. 

The Public Guardian and Trustee of B.C. may investigate and audit the affairs, dealings and accounts of a trustee if a beneficiary appears to be abused or neglected, any adult who appears to be abused or neglected, as well as representatives acting under a representation agreement, an attorney acting under a power of attorney or enduring power of attorney and committees. 

The identity of anyone making a report under the Public Guardian and Trustee Act is protected and the Public Guardian and Trustee of B.C. will investigate in cases where there is immediate risk of harm to an adult’s assets, there is a reason to believe the adult is not capable of managing his or her financial and legal affairs, and no other suitable person is available to manage the adult’s affairs. 

Section 18 of the Public Guardian and Trustee Act sets out Public Guardian and Trustee of B.C. powers to request information and protects third parties from liability for breach of confidentiality when responding to those requests. There are a number of possible outcomes of an investigation. These include: 

• arranging informal solutions or supports and/or referring to appropriate community services;

• a representative or attorney agreeing to comply with their duties going forward;

• a referral to a Designated Agency to investigate other abuse or neglect and/or for further support and assistance; and

• a recommendation that the Public Guardian and Trustee of B.C. become committee of the adult’s estate when there is no other person available and/or appropriate to take on the role, and there are sufficient assets to warrant the Public Guardian and Trustee of B.C.’s involvement. 

Where the Public Guardian and Trustee of B.C. recommends committeeship, the usual process is to arrange for an assessment in accordance with the Public Guardian and Trustee of B.C.’s Guidelines for Issuing a Certificate of Incapability under the Patients Property Act. Court applications are made where a Committee of Person is also required or there is a dispute about who should become Committee of Estate. 

For more information on the Public Guardian and Trustee of B.C.’s services and links to Designated Agencies, see www.trustee.bc.ca.

This article was published in the February 2012 issue of BarTalk. © 2012 The Canadian Bar Association. All rights reserved.