Adult Abuse and Neglect (15:VI)
A. What is Adult Abuse and Neglect?
An adult might be experiencing, or be vulnerable to experiencing, abuse, neglect or self-neglect. In situations where an adult is in need of support or assistance in order to prevent abuse or neglect, the following legislation applies: Part 3 of the AGA; s 34 and 35 of the PAA; s 31 of the RAA; and s 17 to 19 of the PGTA.
The law defines abuse, neglect and self-neglect to include acts and a failure to act. Refer to the Practical Guide to Abuse and Neglect Law in Canada for a summary of the law and practical guidelines on how to identify and respond to situations of abuse or neglect. This guide is produced by the Canadian Centre for Elder Law (CCEL) and is available online at https://www.bcli.org/project/practical-guide-elder-abuse-and-neglect-law-canada.
Section 1 of the AGA defines the terms “abuse” and “neglect” broadly as follows:
• ‘Abuse’ means the deliberate mistreatment of an adult that causes the adult
(a) physical, mental or emotional harm, or
(b) damage or loss in respect of the adult's financial affairs
and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors
• ‘Neglect’ means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs and includes self neglect
B. Responding to Adult Abuse and Neglect
Sometimes the most appropriate and helpful response to abuse or neglect is not a legal response. In some instances, it may be appropriate to contact a designated agency, or the Public Guardian and Trustee. However, the key response is generally to listen to the individual’s description of their experience, and to help the person get support and assistance, often through identifying an appropriate referral agency. You will want to consider whether there is an urgency to the circumstances that suggests a need for immediate action. For example:
• Is the person in immediate danger of harm?
• Will money be stolen or spent?
• Will property be taken away?
• Does the person appear to lack mental capacity?
BC’s PGT office has prepared a useful ‘decision tree’ to help with deciding where to refer someone who is abused or neglected. The front half is the decision tree itself, a flow chart of where to refer. The back contains a table setting out the response from the three resources – the police, the designated agency, and the PGT’s office. Please see Appendix B for the Decision Tree.
The CCEL has published the following guiding principles for responding to concerns about abuse, neglect or self-neglect: (A Practical Guide to Elder Abuse and Neglect Law in Canada (2011)).
1. Talk to the individual Ask questions. Talk to the person about their experience. Help the person to identify resources that could be helpful.
2. Respect personal values Respect the personal values, priorities, goals and lifestyle choices the individual. Identify support networks and solutions that suit their individuality.
3. Recognize the right to make decisions Mentally capable adults have the right to make decisions, including choices others might consider risky or unwise.
4. Seek consent or permission In most situations, you should get consent from the adult before taking action.
5. Respect confidentiality and privacy rights Get consent before sharing another person’s private information, including confidential personal or health information.
6. Avoid ageism Prevent ageist assumptions or discriminatory thinking based on age from affecting your judgment. Avoid stereotypes and show respect for the inherent dignity of all human beings, regardless of age.
7. Recognize the value of independence and autonomy Where this is consistent with the adult’s wishes, assist the adult to identify the least intrusive way to access support or assistance.
8. Know that abuse and neglect can happen anywhere and by anyone Abuse and neglect of older adults can occur in a variety of circumstances from home care to family violence.
9. Respect rights An appropriate response to abuse, neglect, or risk of abuse or neglect should respect the legal rights of the individual, while addressing the need for support, assistance, or protection in practical ways.
10. Get informed Ignorance of the law is not an excuse for inaction when someone’s safety is at stake. If you work with older adults you need to educate yourself about elder abuse.
Another useful document provided by the Public Guardian and Trustee is called Decision Tree: Assisting an Adult Who is Abused, Neglected or Self Neglecting and the related videos (See Section II. C: Secondary Sources).
1. Designated Agencies
There is no duty for the general public to report abuse, neglect or risk in BC. However, if an older adult is experiencing, or particularly vulnerable to, abuse, neglect or self-neglect and is unable to access the necessary support or assistance on their own, anyone may notify a Designated Agency (DA). A representative of the DA will then meet with the adult to decide on what steps can be taken. The DAs are legally required under the AGA to respond to reports of abuse, neglect and self-neglect. The DA process includes involving the adult in decisions about how to seek support and assistance, providing the necessary support and assistance to prevent abuse or neglect, and respecting the right for an adult with capacity to refuse support or assistance.
The DAs are set out in the AGA, and the DAR. They include BC Community Living, Providence Health Care Society, and each of the provincial Health Authorities (i. e. Vancouver Coastal Health, Interior Health, Fraser Health, Vancouver Health Authority and Northern Health Authority). For contact information, refer to section II. E: Designated Agencies in this chapter.
A DA must determine whether an adult needs support and assistance if the agency receives a report of abuse or neglect, has reasons to believe that an adult is abused or neglected, or receives a report that the adult’s representative, guardian or monitor has been hindered from visiting or speaking with the adult (AGA s 47). Where an adult is found to be in need of support or assistance, a DA may take any of the following courses of action: (See s 47(3) and s 51 of the AGA).
• Investigate whether abuse or neglect is happening
• Provide assistance to obtain care, social support, or legal guidance
• Assist in obtaining an appropriate representative or guardian
• Inform the Public Guardian and Trustee
• Prepare and implement a support and assistance plan with the adult
• Apply to the court for an order authorizing the provision of services
Designated Agencies must involve the adult, to the greatest extent possible, in decisions about how to seek support and assistance, and in decisions regarding the provision of support and assistance necessary to prevent abuse or neglect in the future (AGA s 52). DAs are also legally required to respect the right for an adult with capacity to refuse support or assistance (AGA s 2).
Legal professionals need to remember their responsibility to maintain professional conduct and client confidentiality with respect to their clients. There is not a mandatory requirement to report abuse, neglect or self-neglect in BC However, a report to a DA can be made anonymously.
Make sure that the adult has access to all available resources. If the situation is an emergency, call 9-1-1. If the situation is not an emergency, but the older adult is in need of support and assistance to protect themselves, then you may need to contact a DA. Refer to sections II D: Resource Organizations and II. E: Designated Agencies in this chapter for further relevant information, as well as the CCEL tool ‘Elder Abuse and Neglect: What Volunteers Need to Know’, found at: http://www. bcli. org/project/elder-abuse-and-neglect-what-volunteers-need-know
2. Public Guardian and Trustee
Although not a designated agency under the AGA, the Public Guardian and Trustee (PGT) has the statutory authority to investigate all situations where there appears to be financial abuse, neglect, or self-neglect. A designated agency discussed above may refer an investigation of abuse to the PGT.
The statutory powers, set out in s 17 of the PGTA, allow the PGT to investigate and audit the affairs, dealings and accounts of:
• A trust, a beneficiary of which is a young person, an adult who has a guardian, or an adult who does not have a guardian but who is apparently abused or neglected, as defined in the RAA
• If the PGT has reason to believe that the interest in the trust, or the assets of the young or adult, may be at risk, or that the representative, guardian or attorney has failed their duties
• An adult who does not have a guardian, a representative or an attorney under an EPOA but who is apparently abused or neglected, as defined in the RAA
• An attorney under a POA or EPOA, where the PGT has reason to believe assets are at risk or person is not fulfilling their duties
• A representative
• A guardian committee
The statutory powers also allow the PGT to:
• Require trustee, attorney, representative, guardian to provide accounts necessary for an audit (PGTA s 18(2))
• Ask the court for an order allowing access to information previously denied when undertaking an audit or investigation (PGTA s 18 (4))
• Protect a person’s financial affairs and freeze assets in urgent situations for up to 30 days and renew the instructions up to three times for a total of 120 days (PGTA s 19)
Any person may notify the PGT where a representative or attorney is: (RAA s 30(1)(h); PAA s 34(2)(c))
• Abusing or neglecting the person for whom the representative or attorney is acting
• Failing to follow the instructions in the RA
• Incapable of acting as representative or attorney
• Failing to fulfill the duties of a representative or attorney
• Otherwise failing to comply with an RA, or an EPOA
Any person can also make an objection to the PGT if there is a reason to believe that fraud, undue pressure or some other form of abuse or neglect is being or was used to induce an adult to make, change or revoke a financial or legal document (PAA s 34(2)(b)), or a Representation Agreement (RAA s 30(1)(b)).
On receiving an objection concerning Representation Agreements, the PGT must promptly review the situation and may do one or more of the following (RAA s 30(3)):
• Conduct an investigation to determine the validity of the objection
• Apply to the court for an order confirming a change to, or the revocation of, the RA or cancelling part of the RA
• Apply to the court for an order that the RA is not invalid
• Recommend that someone else make a court application
• Make a report to a designated agency, requesting support and assistance in accordance with s 46 of the AGA
• Appoint a monitor
• Authorize remuneration for a monitor out of the adult’s asset
• Take any other action considered necessary
On receiving a report concerning Power of Attorneys, the PGT must promptly review the situation and may do one or more of the following (PAA s 34(3)):
• Conduct an investigation to determine the validity of the report;
• Apply to the court for an order described in s 36 of the PAA
• Advise the person who made the report to apply to the court for an order described in s 36 of the PAA
• Make a report under s 46 of the AGA
• Take steps under the PPA to become a committee
• Take no action, or take any action that the PGT considers necessary
See Part 3 of the PGTA for the planning and accountability obligations of the PGT.
For more information, please visit the PGT website: https://www.trustee.bc.ca/Pages/default.aspx.
3. Additional Resources for Older People Experiencing Abuse or Neglect
Refer to section II. D: Resource Organizations in this chapter, for contact information for the BC Centre for Elder Advocacy and Support, and the Public and Guardian Trustee of British Columbia.
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 21, 2019.|
|© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.|