Elder abuse and neglect are serious issues and with the ever-increasing number of seniors age 65 and older in BC, it is important to bring the issues to the forefront and encourage ongoing discussions with family members and loved ones.
Estate lawyers who have senior clients coming to see them regarding Wills and Estate Planning need to be aware of ageing clients’ susceptibility to influence from family members and caregivers when making financial planning decisions.
Lawyers should also be conscious of mental health issues and the potential for elderly clients to be suffering from dementia or other similar health conditions. In BC, a person must be of sound mind in order to make changes to their testamentary documents.
Under the Wills, Estates and Succession Act, Bill 4 — 2009 section 36(1):
“A person who is 16 years of age or older and who is mentally capable of doing so may make a will.”
Section 12(1) of the Power of Attorney Act [RSBC 1996] CHAPTER 370 states:
“An adult may make an enduring power of attorney unless the adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney.”
If there is any question as to the mental capacity of a client, the lawyer must satisfy to themselves that the client has the requisite capacity by asking detailed questions. The lawyer should also obtain a letter from the client’s health practitioner before proceeding with the preparation and/or redrafting of documents.
It’s important to keep in mind that elder abuse can present in many different forms, including neglect which may be non-malicious and unintentional. All forms of elder abuse are a cause for concern and may require further investigation.
If you or someone you know has concerns about elder abuse, the BC Centre for Elder Advocacy and Support can be found at www.bcceas.ca and the Seniors Abuse & Information Line (SAIL) is at 1-866-437-1940 (toll free).
