The Canadian approach to elder financial abuse from a legal and clinical perspective: A narrative review

Abstract

Elder financial abuse is a growing problem, with significant consequences for society. It is unclear if differences exist in the clinical and legal approach to financial abuse across Canada, thus the purpose of this review. Five databases were searched during the primary literature search. Secondary literature search involved searching grey literature and handpicking references from selected articles. Only articles in English were included. From 10,260 articles initially screened, 30 were included in the review. No literature was identified describing differences in the clinical approach to financial abuse, and no single definition or legislation on financial abuse was identified. Mandatory reporting is required for individuals in a hospital or care facility by only five provinces. This review has identified several important knowledge gaps on the differences in the clinical management of financial abuse, and a lack of definition, legislation and overall mandatory reporting across Canada, which requires further research.

Introduction

Financial abuse is “the misuse of someone’s property and resources by another person”, ¹ or the “misappropriation of an older person's money or property”. ² Financial exploitation and material abuse are used interchangeably for financial abuse: however, for the purposes of this review, “financial abuse” will be used to refer to all associated terms for financial abuse. Unless otherwise stated, “financial abuse” refers specifically to elder financial abuse.

Financial abuse is one of the most prevalent forms of elder abuse; one telephone based study reported an incidence of 4% amongst community dwelling older adults, ³ which is potentially much higher within facilities. Determining the true incidence in Canada is challenging for many reasons, including differences in age criteria and definitions of financial abuse, ⁴ resulting in probable under-reporting of financial abuse.

Financial abuse has many negative consequences for every older adult, healthcare system and society in general, which highlights the importance of preventing, recognising and managing it. To address this burden, knowledge about the current clinical and legal context of financial abuse across Canada is required before implementation of any interventions, which includes differences in the approach between provinces and territories.⁷

Objective

The primary objective was to explore inter-provincial and inter-territorial differences in the clinical approach to financial abuse, and in the legal definitions, legislation and reporting requirements for financial abuse.

Methods

A primary literature search was conducted using five databases (PubMed, CINAHL, PsychINFO, CANLI and WestLawNextCanada). Each database was searched for the appropriate key terms, and medical subject headings (MeSH). No time frame limits were applied to help capture all relevant articles. All searches were limited to the English language, which is the author’s native language. Search terms varied due to differences in key terms used by each database.

Additional articles were identified by hand searching references of selected articles. A grey literature search was also performed using recognised search techniques. Articles whose topic focus did not include one or more of the following were excluded: elder financial abuse, clinical management of financial abuse, financial abuse definition, financial abuse legislation, or reporting of financial abuse. From 10,260 articles initially screened, 29 articles were included in the review (Tables 1 to 3).

Table 1.

Results from the primary literature search.

Search date	Database	Keywords	String of terms / search strategy	Hits
23 November 2021	PubMed	Financial abuse; senior abuse; elder abuse; domestic abuse; aged; aged, 80 and over; frail elderly; legislation; jurisprudence; legislation	(“financial abuse”[All Fields] OR “senior abuse”[All Fields] OR “elder abuse”[All Fields] OR “domestic abuse”[All Fields]) AND (“aged”[All Fields] OR “aged, 80 and over”[MeSH Terms] OR “frail elderly”[All Fields]) AND (“legislation as topic”[All Fields] OR “jurisprudence”[All Fields] OR “legislation”[All Fields])LIMITS: English language	506
16 November 2021	CINAHL	Elder abuse; financial exploitation; aged; aged, 80 and over; frail elderly; rules and regulations; legislation	(elder abuse OR financial exploitation) AND (aged OR Aged, 80 and over OR aging OR frail elderly) AND (rules and regulations OR legislation) LIMITS: English language	450
17 November 2021	PsychINFO	Elder abuse; financial exploitation; older adulthood; aging; older adults; geriatric patients; laws	(Elder abuse OR Financial exploitation) AND (older adulthood OR aging OR older adults OR geriatric patients) AND(laws)LIMITS: English language	41
15 November 2021	CANLI	Elderly; senior; financial abuse; financial exploitation; finances; abuse	(Elderly OR senior) AND (financial abuse OR financial exploitation OR (finances AND abuse)) LIMITS: English language	7013
16 November 2021	WestLawNextCanada	Senior; elderly; older adults; adults; exploitation; protection; financial; abuse	advanced: (senior elderly older-adults adult exploitation protection) & (fin & abuse) LIMITS: English language only	2250

Table 2.

Number of handpicked references.

Date	Hits
29 March 2022	10
20 April 2022	16
3 May 2022	5

Table 3.

Results from a grey literature search.

Grey literature	Date and time	Number of hits
Google	19 April 2022	1

Results

The clinical approach to financial abuse across Canada

There is currently no literature detailing what, if any, differences exist in the clinical assessment and management of financial abuse across Canada. This lack of evidence may represent either consensus or significant diversity across the provinces and territories.

Elder abuse and Canadian law

Canadian legislation is developed at either the federal (Canada-wide) or provincial/territorial level. At present, there is no universal definition for financial abuse, and no federal or provincial/territorial legislation specifically addressing financial abuse. Financial abuse is not listed under the Criminal Code; however, certain acts or behaviours recognised as forms of financial abuse (such as theft and fraud) are included within the Criminal Code,^5,6 when perpetrators can be criminally prosecuted. Otherwise, financial abuse is not prosecutable. ⁷

There is no standardised definition for financial abuse and individual provinces and territories have developed their own definitions, legislation and reporting requirements based on the older adult’s residence. These differences are described below.

Financial abuse legislation by province or territory

Alberta

In Alberta, financial abuse includes the “misappropriating or improperly or illegally converting a significant amount of money or other valuable possessions”. ⁸ In the Protection Against Family Violence Act, family violence includes “ii) any act or threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member”. ⁹

Currently, mandatory reporting of financial abuse in Alberta is restricted to individuals residing in a hospital or care facility, with no requirement for reporting outside of this.

Manitoba

Definitions for financial abuse have been incorporated into provincial definitions for abuse and neglect, under their respective legislation.^10,11 While there is no age criteria for “abuse”, “neglect” refers specifically to individuals aged 18 years or older.

There is no mandatory reporting of financial abuse for community dwelling adults. However, for individuals residing in a care facility, there is a duty to report. ¹⁰ Additionally, under the Vulnerable Persons Living with a Mental Disability Act, there is a mandatory requirement to report all cases of suspected financial abuse amongst vulnerable individuals to the Manitoba Family Services and Consumer Affairs. ¹¹

Ontario

Financial abuse has been specifically defined by the Long-Term Care Homes Act as being “any misappropriation or misuse of a resident's money or property”. ¹² Under this legislation, any individual who suspects financial abuse of a resident in a Long-Term Care facility must report this to the Facility director. Outside this setting, there is no duty to report.

Nova Scotia

Under the Protection for Persons in Care Regulations, financial abuse is included as “the misappropriation or improper or illegal conversion of money or other valuable possessions” for persons 16 years or older ¹³ which requires the reporting of financial abuse of any person living within a healthcare or care facility. ¹⁴

Newfoundland and Labrador

The Family Violence Protection Act incorporates financial abuse within the definitions of spousal abuse and family violence. Spousal abuse includes “(c) an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or damage to property”. ¹⁵ Family violence includes “conduct that controls, exploits or limits the applicant's access to financial resources for the purpose of ensuring the applicant's financial dependency”. ¹⁵ There are no age criteria. There is currently no mandatory reporting for cases of financial abuse.

British Columbia

In British Columbia, financial abuse refers to “(a) the misuse of the funds and assets of a person in care by a person not in care, (b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative”. ¹⁶ The Adult Guardianship Act has also incorporated financial abuse into their definitions for abuse and neglect. ¹⁷ No age criteria has been specified for the former legislation, however the latter refers to adults aged 19 years or older.

Under the Residential Care Regulations, mandatory reporting of financial abuse is limited to individuals residing in a care facility. ¹⁶

Quebec

The Charter of Human Rights and Freedoms reports that “every aged person and every handicapped person has the right to protection against any form of exploitation”, ¹⁸ which includes “exploitation of an aged person”. Exploitation, as per the Commission des droits de la personne et des droits de la jeunesse, is “the mistreatment of an older person who is both vulnerable and defendant on others to meet basic needs, and includes economic, physical, psychological, social and moral abuse”. ¹⁹ Similar to other provinces, there is no mandatory duty to report financial abuse.

Saskatchewan

Financial abuse “means the misappropriation of funds, resources or property by fraud, deception or coercion”, as per the Public Guardian and Trustee Act. ²⁰ Financial abuse also falls under domestic violence legislation as “any intentional or reckless act or omission that causes bodily harm or damage to property; any act or threatened act that causes a reasonable fear of bodily harm or damage to property; forced confinement; or sexual abuse”. ²¹ There is no mandatory duty to report financial abuse.

Prince Edward Island

The Adult Protection Act includes financial abuse within its definitions for abuse and neglect”. ²² Any individual can report cases of financial abuse in persons who they believe are in need of assistance or protection to the Minister of Health and Wellness”; ²² however, there is no mandatory duty to report such cases.

Yukon

Financial abuse falls under adult protection and domestic violence legislation. The Adult Protection and Decision Making Act’s definition of abuse includes “The deliberate mistreatment of an adult” that “(b) causes financial damage or loss to the adult” and includes “or denial of use or possession of personal property”. ²³ Neglect specifically refers to “financial damage or loss to the adult, and includes self-neglect”. ²³ The Family Violence Prevention Act definition of family violence includes “(a) any intentional or reckless act or omission that causes bodily harm or damage to Property, (b) any act or threatened act that causes a reasonable fear of bodily harm or of damage to property”. ²⁴

There is no mandatory reporting of financial abuse. However, anyone can report cases of suspected financial abuse to the Seniors’ Services/Adult Protection Unit regardless of where the older adult is located, with the exception of a correctional facility. ²⁵

Nunavat

Financial abuse is included in the Family Abuse Intervention Act within its definition for family abuse as “conduct of any kind the purpose of which is to control, exploit or limit a person’s access to financial resources for the purpose of ensuring the person’s financial dependency”. ²⁶ There is no mandatory reporting of financial abuse.

Northwest Territories

Financial abuse falls under the Protection Against Family Violence Act, which includes “psychological abuse, emotional abuse or financial abuse that causes harm or the fear of harm to the applicant, any child of the applicant or any child who is in the care of the applicant”. ²⁷ There is currently no mandatory obligation to report financial abuse.

New Brunswick

An “abused elderly person” is defined as an adult 65 years or older – but it specifically excludes financial abuse. ²⁸ Therefore, there is no definition, legislation, or mandatory reporting of financial abuse.

Discussion

Financial abuse is, arguably, the most common form of elder abuse. Older adults are more vulnerable to financial abuse as they are more likely to develop medical conditions that can make them vulnerable, e.g. major neurocognitive disorder. Therefore, the development of a standardised Canada-wide approach to financial abuse is crucial. It should incorporate targeted legislation and mandatory reporting of financial abuse, to optimise its prevention as well as recognition if it occurs.

There is a dearth of research available, however. No literature addresses the clinical assessment and management of financial abuse across Canada. There is further no uniform definition for financial abuse, nor any federal or provincial/territorial legislation, with only limited mandatory reporting of financial abuse cases restricted to individuals residing in either a care facility or care setting.

Different strategies have been used to define financial abuse and in reporting requirements across the different provinces and territories. There are multiple different definitions for financial abuse by legislations across multiple areas. This includes adult protection and guardianship, residential and care facility, domestic violence and human rights legislation. This variation can be attributed to differences within society’s perspectives on protection of the individual versus preservation of individual’s decision-making ability. Of note, these definitions are not specific to older adults but are aimed at the general population.

No province or territory currently requires reporting of financial abuse for older adults outside a care facility. Some investigatory agencies can impose a duty to report financial abuse after an investigation has been started. However, these institutions can disclose information to the government, next of kin or authorised individuals when they suspect an individual is or has been a victim of financial abuse. ²⁹ Other mandatory reporting of financial abuse is limited to a criminal act or investigation.

Given its increasing frequency and the harm it causes this needs to change. Currently, too many acts of financial abuse are not included under the Criminal or Civil code so that, in contrast to child abuse, it is not a prosecutable offence. While this may in part explain the lack of mandatory reporting, it is unlikely to be the only factor.

There appears to be either denial and/or lack of acknowledgement of this issue by society, which may be due to society’s perspective of elderly people and the level of understanding of financial abuse, i.e. as a “real” concern affecting older adults. Although not formally stated, “ageism” still exists across all levels of the population, which is evident in individual attitudes and behaviour towards the ageing population, and associated stigma. Denying the presence of ageism is likely to worsen the current situation. Tackling this problem head-on is the best approach and will need to involve both public and policymaker education, in addition to multi-level interventions to tackle this often invisible but growing issue. Only by doing this can we hope to stem the tide of potential financial abuse.

Conclusions

This literature review has identified a lack of research in addressing the inter-provincial and inter-territorial clinical approach to elder financial abuse across Canada. There is no uniform definition, legislation and mandatory reporting of financial abuse, which is not currently regarded as a criminal offence. Accordingly, the lack of legislation and reporting obligations are not altogether surprising. However, in the context of an ageing population who will be vulnerable to financial abuse, this knowledge-practice gap needs to be tackled urgently. Further research is needed followed by appropriate formal legislation to address the problem.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.