By Sara Pon – Canadian Centre for Elder Law
We are excited that Kimberly A. Whaley, founding partner at Whaley Estate Litigation Partners, will be presenting at the Canadian Elder Law Conference 2019.
In this blog post, we share an interview with Kimberly on her presentation, entitled “Elder Abuse: Civil and Criminal Remedies.” Kimberly brings her wealth of experience as a trust and estate lawyer to shares with us how lawyers can best help clients who are experiencing elder abuse navigate the court system and obtain useful remedies while negotiating practice challenges and ethical issues.
Can you describe your presentation on civil and criminal remedies for elder abuse?
Kimberly: The presentation is aimed at providing information on how to recognize, prevent and remedy elder abuse situations in Canada. It starts with an overview of the various forms and definitions for “elder abuse,” including financial elder abuse, physical, psychological, etc. Then the remaining portion looks at examples of abuse, “red flags,” and the various ways to pursue and remedy or “right the wrongs” of elder abuse.
As a lawyer, I suggest to clients that these remedies can be pursued through both the civil court systems (where individuals commence a lawsuit) and the criminal court system (where the Crown initiates the action). Notably, I am not a criminal lawyer and these reports are done through the police. The presentation uses real-life examples of court cases to help illustrate how the courts approach elder abuse cases.
What civil remedies do you feel are most effective for people experiencing elder abuse?
Kimberly: This depends on the type of elder abuse. For example, for financial elder abuse through the misuse/abuse of a Power of Attorney document, commencing a claim to have the attorney removed and for them to pay back any missing money is an effective way to protect the elderly victim from further harm and for them to recoup any losses. This approach, combined with a guardianship application, is the recommended approach if the older person lacks requisite capacity to appoint a new attorney. Unfortunately, civil lawsuits can be costly and take a lot of time to make their way through the court system. Often proceedings do not resolve in a timely manner.
What barriers exist for those facing elder abuse to access remedies—both civil and criminal?
Kimberly: For both civil and criminal, the first hurdle is encouraging the older adult victim to report the abuse. Many people will keep silent due to the stigma, fear, not wanting to upset their family (if the perpetrator is a family member), etc. Time and money are two big barriers to accessing civil remedies. Our court system can be slow, and having proper representation and paying for necessary disbursements, such as expert reports etc., can become costly. Having lawyers who are experienced in elder law and/or elder abuse may assist in narrowing the issues and keeping those costs down. One of the big barriers for criminal remedies is that elder financial abuse rarely attracts criminal charges. Police often decline to investigate under the mistaken belief that the actions are not criminal. There are several under-utilized sections of the Criminal Code.
What role do you feel lawyers are most able to play in helping older adults experiencing abuse access remedies?
Kimberly: We can help older adults understand the options available and assist in determining the best recourse to pursue. It can be overwhelming to try to navigate the legal world on their own. Some people may not even realize the number of remedies available.
What would you say are the biggest practice challenges facing lawyers in helping older clients who have experienced abuse?
Kimberly: Older adult victims of abuse may be reluctant to report the abuse in the first place. Many might be afraid of the perpetrator, or ashamed, or worried about losing their independence and having to leave their home, etc. So practically speaking, it is a challenge to encourage the older adults to seek out help and potential remedies. Also, there may be certain family dynamics involved that make it challenging for a lawyer to assist the older adult. While many family members are well-meaning, some may become over-involved. It is important for lawyers to understand and keep in mind who their clients are.
Are there any ethical considerations or challenges that lawyers need to be aware of when representing a client who has experienced elder abuse?
Kimberly: Lawyers must always be mindful of the applicable Rules of Professional Conduct from their province’s law society, including those of confidentiality. As stated, well-meaning family members may wish to be involved, but without your client’s approval, information from your client should not be disclosed to others. When dealing with older adults, mental capacity and vulnerability may be an issue, along with susceptibility to undue influence. Lawyers should assess and be mindful of any individuals who accompany the older adult to your office and meet with the client alone, take extensive notes, and assess whether the older adult has capacity to instruct counsel.
How has your background as a lawyer in trust and estate law helped you in your writing and lecturing on elder abuse?
Kimberly: Having experience with and working with “real life” cases, I am aware of the extent of elder abuse and how the courts are dealing with this problem. Also, there is often overlap between my estate practice and elder law practice, with allegations of abuse arising during power of attorney proceedings or capacity proceedings. My law practice background gives me a lot of information to write and speak about, and hopefully communicate what I have learned to others so they can assist in identifying and remedying elder abuse as well.
In your opinion, what do you think are the most pressing issues in elder abuse prevention or response?
Kimberly: We need to continue educating professionals and others who interact with older adults, such as police, health professionals and the community. Likewise, we need to learn from them and individuals who deal with older adults on the financial front (banks, financial advisors, etc.) as well as other lawyers who are drafting wills and power of attorney documents, about the red flags and prevalence of elder abuse. Stopping elder abuse before it starts, or stopping it early on, or responding to it quickly, can only be improved by educating the people who deal with older adults directly, and are in the best position to identify elder abuse as it is occurring.
Canadian Elder Law Conference
The Canadian Elder Law Conference 2019, entitled Bridging the Gap: Elder Law for Everyone will be taking place from November 14-15, 2019 in Vancouver, BC. Kimberly’s presentation, Elder Abuse: Civil and Criminal Remedies, will be at 4:00 pm on the first day, Thursday, November 14, 2019.