Navigating the complexities of elder abuse is paramount for lawyers in Canada, particularly when serving elderly clients. The unique vulnerabilities that accompany advanced age, coupled with the intricacies of legal matters such as estate planning and guardianship, create risk for potential exploitation and mistreatment. Lawyers must be acutely aware of the signs and risk factors associated with elder abuse, ranging from financial exploitation to emotional manipulation. Moreover, they bear a significant responsibility to not only provide sound legal counsel but also to act as advocates for their elderly clients, ensuring their rights are upheld and their best interests are protected. Lawyers play a pivotal role in preventing and addressing elder abuse, thereby promoting the dignity and well-being of older adults within the legal system. Some best practices include the following:
  1. Establish Trust and Rapport: Develop a strong relationship built on trust, respect, and empathy. Take the time to understand the client's background, values, and concerns, fostering open communication and collaboration. It is important to meet alone with the client to determine their true thoughts and intentions.
  2. Comprehensive Communication: Communicate clearly and effectively, using plain language to explain legal concepts, processes, and potential outcomes. Ensure the client comprehensively understands their options, addressing any questions or uncertainties they may have.
  3. Advance Planning: Encourage proactive estate planning to address the client's wishes and goals while they are of sound mind and body. Help clients draft wills, trusts, powers of attorney, and advance healthcare directives, ensuring their affairs are in order and their intentions are legally documented.
  4. Capacity Assessment: Conduct thorough assessments of the client's mental capacity to make informed decisions about their estate. If capacity is in question, involve appropriate medical professionals to assess cognitive abilities and ensure the client's autonomy is respected.
  5. Guard Against Undue Influence: Be vigilant for signs of undue influence or coercion from family members, caregivers, or others with a vested interest in the client's estate. Exercise caution in situations where power imbalances exist, taking steps to safeguard the client's autonomy and protect against exploitation.
  6. Document Everything: Maintain detailed records of all interactions, decisions, and instructions provided by the client. Documenting discussions, agreements, and changes to the estate plan helps mitigate the risk of disputes or challenges in the future, providing clarity and accountability. This is particularly important in cases where the intentions of their will and/or estate are in question.
  7. Regular Reviews: Encourage periodic reviews and updates to the estate plan to reflect changes in the client's circumstances or preferences. Prompt clients to revisit their plan following significant life events such as marriages, divorces, births, or changes in health, ensuring it remains current and reflective of their wishes.
  8. Educate About Elder Abuse: Raise awareness about the signs and risks of elder abuse, providing information and resources to help clients recognize and prevent exploitation or mistreatment. Empower clients to assert their rights and seek assistance if they suspect they are being victimized.
  9. Refer to Specialists: Recognize when specialized expertise is needed and refer clients to relevant professionals such as financial planners and tax advisors. Collaborate with interdisciplinary teams to address complex issues and provide comprehensive support tailored to the client's needs.
This post was co-authored by Kelli Preston and Articling Student, Owais Hashmi.
“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”