Senior Law and Elder Abuse (Script 239)

From Clicklaw Wikibooks

This script has legal information for seniors on financial help, elder abuse, and financial and medical affairs (this last section deals with wills, powers of attorney, mental incapacity, transferring a home to a child, and lending money to family members).

Financial help for seniors

Lots of financial help is available for seniors, including home care support and assisted living, free flu shots, discounted prescriptions, housing benefits like rent help, homeowner’s grants and deferred property taxes, and discounted bus passes. If you’re 60 or over, you should know about these benefits.

What old age security and other income assistance can you get?

  • OAS: You may qualify for the Old Age Security Pension (OAS) if you’re a Canadian citizen or landed immigrant, 65 or older. The amount you get depends on how long you’ve lived in Canada. If you don’t receive a letter from Service Canada soon after you turn 64, you will have to apply for OAS. Do that as soon as you can to avoid losing any payments.
  • Guaranteed Income Supplement: As well as the OAS pension, low-income seniors may be able to get a Guaranteed Income Supplement. The less income you have, the more of this supplement you can get. In addition, the Senior’s Supplement is a monthly payment to low-income seniors who are receiving federal Old Age Security and the Guaranteed Income Supplement or federal allowances. If your income level falls below a level that BC guarantees, the supplement makes up the difference. It is automatic if you qualify—you don’t need to apply.
  • Allowance: If you’re aged 60 to 64 and your spouse is a senior who is getting the OAS pension and Guaranteed Income Supplement, you might also qualify for an Allowance. The Allowance is extra money for couples who live on only one OAS pension. If your spouse dies and you’re between 60 and 64, you might be eligible to get the Allowance for the Survivor.
  • Welfare or income assistance: If you’re not eligible for the OAS or Guaranteed Income Supplement, but need money for food, housing, clothing and other basic needs, you may be eligible for welfare or income assistance.
  • CPP: A person who has worked and contributed to the Canada Pension Plan (CPP) and then retired can receive a pension from the Canadian government. This is an extra benefit, in addition to the OAS. CPP retirement benefits may begin as early as age 60.
  • SAFER: BC has the Shelter Aid for Elderly Renters Program (SAFER), which provides monthly cash payments to eligible BC residents who are 60 years or over and pay rent for their homes.

For more information on financial help for seniors, check:

  • Public pensions on the Service Canada website. Or phone Service Canada at 1.800.622.6232.
  • CanadaBenefits—the seniors section has a long list of programs and related links. They cover finances, housing, health, and personal safety.
  • The BC government seniors website or the Office of the Seniors Advocate—call 1.877.952.3181 or call the BC Ministry of Health at 1.800.465.4911..
  • The Bus Pass Program offers lower cost, annual bus passes for low-income seniors and people receiving disability assistance from British Columbia.
  • The Publications page on the People’s Law School website. It has a lot of information including guides in a series called, “When I’m 64”. It has a video and a set of booklets covering services, benefits, planning for the future, and other topics.

Elder abuse

Elder abuse is surprisingly common—1 in 12 seniors in BC is abused. BC’s Adult Guardianship Act tries to protect adults from abuse, neglect and self-neglect. It defines abuse as deliberate mistreatment that causes physical, mental or emotional harm to the adult, or damage to, or loss of, their assets. Elder abuse includes intimidation, humiliation, physical assault, sexual assault, overmedication, lack of medication, censoring of mail, invasion of privacy and denial of access to visitors. The BC government website on protection from elder abuse and neglect has more information on the topic.

Who can help if you are being mistreated (or if an older adult you know is mistreated)?

  • Designated Agency: Contact a Designated Agency to report abuse or neglect of an adult. Designated agencies are the regional health authorities, the Providence Health Care Society, and Community Living BC (for adults with developmental disabilities). Call the Health Information Line at 1.800.465.4911 and ask for your regional health authority.
  • Public Guardian and Trustee of BC: Contact this office to report abuse or neglect of an adult. Call 604.660.4444 in Vancouver. Elsewhere in BC, call Service BC at 1.800.663.7867 (toll-free) and ask to be transferred to this office. They have a list of who to call to help an adult get support and to report abuse or neglect.
  • Patient Care Quality Office: Each health authority must have a “patient care quality office” to handle complaints about the quality of patient care. Health authorities also have patient care quality review boards to review the treatment of complaints. These complaint offices and review boards operate under the Patient Care Quality Review Board Act.
  • The Assisted Living Registrar: The Registrar’s mandate is to protect the health and safety of assisted living residents. Assisted living registry staff investigate complaints related to the health and safety of persons living in assisted living residences. Call 250.952.1369 or 1.866.714.3378 (toll-free).
  • Seniors First BC (previously called BC Centre for Elder Advocacy & Support): This agency provides education, support and advocacy for older adults. Call 604.437.1940 in Vancouver or toll-free 1.866.437.1940 elsewhere in BC.
  • Office of the Seniors Advocate: If you are concerned with the care and service provided to you or a family member by a health authority, call Office of the Seniors Advocate at 1.877.952.3181. The website also has links to many programs and services.

What happens if you report elder abuse?

The designated agency must consider your report. An investigator must make reasonable efforts to interview the older adult involved (whether that’s you or someone else). If the problem can’t be solved informally, the designated agency may have several legal options, including preparing a support and assistance plan, notifying the Public Guardian and Trustee (PGT) (if there is a concern of financial abuse) and applying for a restraining order to keep the suspected abuser away. The designated agency must involve the older adult, to the greatest extent possible, in decisions about how to seek support and assistance.

If the abuse involves a criminal offence such as threats, assault, forgery or intimidation, the designated agency must report it to the police.

The PGT investigates reports of financial elder abuse when the older adult’s assets are at risk and the person is incapable of managing his or her financial affairs. In some situations, the PGT may take steps to become “committee” of the estate, so it can make financial decisions to protect the person’s assets (“committee” is discussed later in this script). If the PGT gets a report involving concerns about physical risk, it will refer the situation to a designated agency.

Financial and medical affairs

Changing your will

You can always change your will as long as you’re mentally competent. Actually, you should change your will whenever your financial or personal circumstances change, or if your beneficiaries change (for example, if a beneficiary dies).

You should also review your will if you get married or divorced, or you separate, or you live in a marriage-like relationship for at least 2 years. Under the former law, when a person got married, the marriage automatically revoked or cancelled their existing will. Under the new law, the Wills, Estates and Succession Act (the Act) that does not happen.

A gift to a spouse and the appointment of a spouse as an executor are revoked if a person stops being a will-maker’s spouse after a will is made. When do people stop being spouses? Married people and people who have lived in marriage-like relationship for at least 2 years stop being spouses under the Act when they separate.

You should always see a lawyer when making or changing your will.

Can you disinherit a family member?

Yes, but the Wills, Estates and Succession Act lets a court change a will that doesn’t adequately provide for the maintenance and support of the deceased person’s spouse or children. So a court can change your will after you die if it decides that you’ve been unfair or unreasonable toward a spouse or child. However, by consulting a lawyer for estate planning, you may be able to give away your estate in other ways that don’t involve a will. For example, in some cases, an alter ego trust or a joint partner trust may let you avoid probate fees and the effect of the Act.

For more information on wills and estate planning, check scripts 176 to 179.

What is a power of attorney? What is an enduring power of attorney?

A power of attorney is a document that appoints another person, called an “attorney,” to make financial and legal decisions for you. An enduring power of attorney lets your attorney make the necessary financial and legal decisions for you if you become mentally incapable because of age, accident or illness. But these documents can’t deal with health care decisions. And if you want your attorney to deal with real estate, then you need the proper Land Title Act format. There are restrictions on who can be your attorney (for example, caregivers are not eligible), and formal procedures must be followed for signing a power of attorney. A lawyer can help you with this.

For more information, check script 180 on “Power of Attorney and Representation Agreements”.

Can you make your own decisions about your healthcare and where to live?

All adults have the right to live as they wish and to accept or refuse support or assistance, as long as they’re capable of making these decisions and don’t harm others. BC’s Health Care (Consent) and Care Facility (Admission) Act also confirms the right of all adults over 18 to make their own medical and health care decisions.

What if you become mentally incapable of making your own decisions?

It’s a good idea to plan for when you may be unable to make your own decisions. For example, to deal with decisions on your legal and financial affairs, you can make a power of attorney. To deal with health and personal decisions, you can make a “representation agreement.” In this, you appoint someone you trust to handle your personal and health decisions if you’re unable to make your own decisions.

If you don’t make a representation agreement, the BC Health Care (Consent) and Care Facility (Admission) Act says that, if you are mentally disabled, first your spouse, then your adult children, then your nearest relative and then your close friend will make these decisions for you.

But what happens if you become mentally incapable and you haven’t named anyone to make decisions for you, and you don’t have a spouse, children, relative or close friend? The BC Supreme Court can appoint someone to make decisions for you. That person has to apply to the court under the Patients Property Act to be your “committee.” Often a close friend or relative will apply to be committee. If none of these people apply, and instead, the Public Guardian and Trustee of BC applies (and it usually will in this case), the court can appoint the PGT as committee. Your estate must pay a fee to the PGT for its service.

For more information in this area, check the following 2 scripts:

  • 180 on “Power of Attorney and Representation Agreements”
  • 426 on “Committeeship”

Also, check the Nidus Personal Planning Resource Centre and Registry.

Should you transfer your home to your child so you can stay in it with them?

It depends. As people age, they often need help with their daily needs, but may not want to leave the comfort of their own homes. Sometimes, family members or friends will suggest that they move into your home and have you transfer your home to them in exchange for their looking after you. This can often be a good way to get the help you need, while letting the younger family member or friend get a home.

But this arrangement can cause misunderstandings and trouble. As your health changes and your needs increase, the family member or friend may not be able to give you the care you need, without significantly changing their own lives. For example, they may have to quit their job and stay at home with you to care for you. But they may not be willing to do that. At that point, you may need to sell your home to pay for health care and assisted living help.

In most cases, it’s not a good idea to transfer your home to your child or to add their name to the title of your home because creditors and spouses could make claims against your home. And you could lose the capital gains tax exemption for your principal residence if a child’s name is on the title, but it’s not their principal residence.

So before you make any such an arrangement, see a lawyer experienced in this area to protect your rights.

How should you protect yourself when lending money to family members?

Older people often help their children or grandchildren by lending them money, co-signing a bank loan, or giving a personal guarantee. But you could lose a lot of money if you don’t protect yourself by understanding the transaction and getting proper documents signed.

If you lend money to finance a house purchase, make sure you register a mortgage on the home to secure your interest. If you don’t want to do that, you should at least get the borrower (and their spouse) to sign a promissory note with the loan terms.

If you guarantee a family member’s bank loan, you are promising to pay the bank in full if the borrower doesn’t repay the loan. You’re responsible for the full amount of the loan, and the bank can come after you for it. Make sure that any guarantee you sign is for a specific amount.

Before you lend money to a friend or family member, make sure you see a lawyer for advice on the best way to protect your loan and your personal liability.

For more information, check script 248 on “Co-Signing or Guaranteeing a Loan”.

Credit cards and bankcards

If you apply for a credit card and agree to have an extra credit card issued to your spouse or child, you’re responsible for all purchases that person makes with the card. If you let someone else use your credit or bankcard, you’re responsible for paying this off too.

For more information, check script 246 on “Buying Goods on Credit, Credit Cards and Credit Bureaus”.

More information

  • The Seniors’ Guide on the Seniors website of the BC government has a wide range of information.
  • Regional health authorities: contact these authorities to report abuse or neglect of an adult. Call the Health Information Line at 1.800.465.4911 (toll free) and ask for your local health unit.
  • Canadian Centre for Elder Law: check the publications on their website (part of the BC Law Institute). Or call the Centre at 604.822.0633 in Vancouver.
  • Public Guardian and Trustee of BC: check the publications on adult guardianship, elder abuse, representation agreements and other topics. Or call 604.660.4444 in Vancouver or 1.800.663.7867 elsewhere in BC and ask for the Public Guardian and Trustee.
  • HealthLinkBC: call this office for any medical questions that are not emergencies. It has a Senior Health section with information on many topics such as elder abuse and advance planning. Call 811.
  • BC laws: this website has all the laws that this script refers to.

[updated July 2018]

The above was last edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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