Abuse and Neglect of Seniors and Others with Disabilities (4:VII)

From Clicklaw Wikibooks



Abuse and neglect of seniors and adults with disabilities occur when a family member, friend, caregiver or other person financially, physically, or emotionally abuses or neglects such an individual. Elder Abuse and abuse of adults with disabilities include physical, mental or emotional harm, and damage or loss in respect of financial affairs (i.e., financial abuse). Examples include intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy, denial of access to visitors, and neglect. Many types of abuse, and some types of neglect, are criminal offences.

All types of abuse and neglect are harmful. Such abuse can occur because of lack of knowledge or understanding by a caregiver of an adult’s situation, or be very deliberate. The person causing the harm may have mental health difficulties, alcohol or substance use, or more complex psychosocial issues. Further, individuals who have suffered years of spousal abuse may also be susceptible to further neglect and abuse, such as financial abuse, by others.

Abuse or neglect of seniors and adults with disabilities is often hidden behind inquiries about benefits, services, and wills and estates. For instance, such an individual may inquire about housing benefits available to them. A little probing may uncover that the reason for wanting housing benefits is to escape an abusive relative who has taken control of their house. Individuals should watch for subtle indications of abuse and neglect.

Some older adults may be embarrassed to reveal abuse or neglect, particularly if a family member is involved. Some may not know how to get help, or be unsure if what they are experiencing is considered abuse or neglect. Some may worry about repercussions on their family member or caregiver. They may also fear retaliation from the person who harmed them. Or, they may fear losing services they need, losing their money, having to move, or breaking up the family. They may worry about not being believed.

The information below pertains to the many avenues victims or those acting in their best interests may chose to pursue, as well as lists available resources. Further information on how to address seniors’ abuse may also be found in Chapter 15: Adult Guardianship and Substitute Decision-Making.

A. Ending the Abuse or Neglect

Upon discovering a case of abuse or neglect of a senior or individual with disabilities, clinicians should provide information about what kind of help is available. Police respond to reports of persons in immediate danger or possible criminal offences. They investigate offences and can provide information about other agencies that may be able to help. Victim Service programs are located in community agencies or police stations. They provide emotional support, justice system information, safety planning, referrals to counselling and other services, help in accessing crime victim assistance benefits, and support to victims going to court.

Please see the end of the chapter for resources.

Part 3 of the Adult Guardianship Act, RSBC 1996, c 6 [AGA], has special provisions on abuse and neglect. These include physical, sexual, emotional, and financial forms of abuse/neglect. These provisions are aimed at adults unable to get help because of a physical restraint, a physical disability, or a condition that affects their ability to make decisions about the abuse or neglect.

Under Part 3 of the Act, Designated Agencies respond to reports of abuse or neglect involving adults in these circumstances and notify police if a criminal offence appears to have been committed. Designated Agencies under the Adult Guardianship Act include the five Regional Health Authorities, Providence Health Care Society, and Community Living BC. They can address a range of health and safety issues and help in informal or formal ways. Formal tools include gaining access to the adult in emergencies, obtaining orders or warrants, obtaining short and long-term restraining orders, and on occasion obtaining support and assistance court orders.

Designated Agencies often work with the Public Guardian and Trustee (PGT) in responding to abuse/neglect situations. Under the Public Guardian and Trustee Act, the PGT investigates reports of financial abuse or neglect, can restrict access to assets in emergencies where there is concern an adult may be mentally incapable, and may provide financial management services for adults incapable of managing their own affairs. The PGT makes referrals to Designated Agencies if there are concerns about physical risk or harm to the vulnerable adult. The link to the PGT’s Decision Tree can be found here.

For further information on supporting victims of elder abuse, see the Understanding and Responding to Elder Abuse E-Book here.

Other BC laws aiming to protect adults in financial and health-care matters include the Power of Attorney Act, the Representation Agreement Act, and the Health Care (Consent) and Care Facility (Admission) Act.

Remember that the victim may depend on their alleged abuser for financial or physical assistance. If the victim wants to make a report that may lead to the laying of information, moving to a transition house, or getting a protection order (see Section V.B.3: Protection Order, below), they may need to find alternate arrangements for financial or physical support that the abuser may have been providing. Some of the financial and social services available to the victim are listed below.


B. Legal Remedies

1. Criminal Charges

No BC legislation specifically addresses abuse of elders and adults with disabilities but the following Criminal Code sections may apply:

  • s 265: assault;
  • s 215(1)(c): duty of persons to provide necessaries to a person under their charge;

Financial abuse offences:

  • s 322: theft;
  • s 331: theft by person holding power of attorney; and
  • s 332: misappropriation of money held under direction.

Remember that a victim may be reluctant to make a report that may lead to the laying of an Information against a family member.


2. Peace Bond

Pursuant to ss 810 and 811 of the Criminal Code, a peace bond requires that the abusive person “keep the peace” for up to 12 months or face a possible prison sentence.


3. Protection Order

A protection order (formerly referred to as a restraining order) restricts contact between the abused and abuser and is available pursuant to s 183 of the FLA, but only if the abused is a spouse or family member that lives with the abuser. The FLA defines “spouse” as someone who is married to another person or has lived with another person in a marriage-like relationship and has done so for a continuous period of two years or has children with another person. The Act defines a “family member,” with respect to a person, as that person’s spouse or former spouse; a person with whom the person is living, or has lived, in a marriage-like relationship; a parent or guardian of the person’s child; a person who lives with and is related to the person; or the person’s child.

A restraining order can also be obtained under s 56(3)(c) of the AGA. It is necessary to note the defendant’s date of birth when applying for the restraining order so that it is not placed against the wrong individual. Applicants should remember to include a Police Enforcement Clause so that the police are required to act on breaches. Once the order is in place, it is registered with Protection Order Registry, which is accessible by police.


4. Conditional Release or Probation

Another way to protect the victim is to contact the Crown if the abuser has been charged and, on a finding of guilt, to get conditions placed on the abuser’s release or probation order restricting contact between the abuser and the victim. Keep in mind that the burden of proof is higher in criminal matters (i.e., beyond a reasonable doubt) than civil matters (i.e., on a balance of probabilities), including when proving a breach of conditions.



© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.


Personal tools
Namespaces

Variants
Actions
Site
Tools
Contributors
Print/export