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Introducing the New “Practical Guide to Elder Abuse and Neglect Law in Canada”
Krista James
Do you have a duty to report abuse and neglect of older people when you notice it in your client relationships?
What if you see elder abuse in your community or you think another professional is taking advantage of an older person? Should you report those situations? If so, where do you report abuse?
Elder abuse response is complex because the appropriate action depends on the older person’s unique circumstances, who is hurting the individual, and perhaps most important what the older person wants. Your obligations and options will depend on the location where the abuse occurred and the nature of your professional relationship with the older person.
Consequently, elder abuse law and policy can be challenging to understand and apply. Options and obligations are spread out among various laws and policies; each province and territory in colonial Canada has come up with a unique mix of legislation to address elder abuse.
The Canadian Centre for Elder Law developed the Practical Guide to Elder Abuse and Neglect Law in Canada to address the confusion about the law. In April 2021, we launched a new and improved version of the Practical Guide in the form of a searchable website with printable units. This article will review the central features of the new website and describe key aspects of BC’s elder abuse legal framework.
The New Website www.ccelderlaw.ca
1. Modules on the Law in Each
Province and Territory
The Practical Guide website contains a comprehensive module on relevant aspects of law and policy in each of the provinces and territories. Each module covers the following. • Adult protection legislation (if it exists in that jurisdiction) • Remedies available under family violence legislation • Rules related to abuse occurring in long-term care • Privacy law, confidentiality, solicitor client privilege, and their impact on elder abuse response • Abuse and neglect reporting responsibilities unique to specific professional groups • Aspects of employment law, such as family violence leave provisions
The modules review definitions of abuse and violence that form part of each statute to clarify the kinds of elder abuse or neglect, such as financial abuse, emotional abuse, or physical abuse, that point to options for response under each statute. Each jurisdictional profile also summarizes all the various financial substitute decisionmakers in that province or territory, the powers and duties they have, and how to challenge their authority if they appear to be abusing an older person or their authority as substitute decision-maker.
Comparing those sections may be particularly helpful to those of you who have clients whose lifestyle involves travel across borders. Terms like Power of Attorney can refer to legal instruments with differing kinds of authority and responsibilities in various parts of Canada.
The modules also review critical aspects of policy, such as criminal prosecution policy and income assistance benefits available to older immigrants whose sponsors are abusing or neglecting them. Each unit also identifies key contact agencies, such as where an older person can find legal help or victim assistance.
2. Federal Legislation
The Practical Guide has information on federal laws that apply to elder abuse. A section on the criminal law discusses Criminal Code of Canada offences that could apply to instances of abuse and neglect. The section also discusses criminal protection orders (known as peace bonds or section 810 recognizances) and sentencing principles applicable to abuse and neglect.
The federal laws section also discusses family class immigration and sponsorship breakdown and federal privacy laws that apply to abuse and neglect response by federally regulated sectors, such as banks. Each of the sections includes links to resources for further learning.
When older Indigenous people are living on reserves, the rights and options for response can be different. The Practical Guide contains a section on rights on reserves that addresses protection orders available under the Family Homes on Reserves and Matrimonial Interests or Rights Act, and some other law and policy issues linked to supporting older Indigenous people who have experienced abuse or neglect.
3. Best Practices in Elder Abuse
Response
Even with a full understanding of law and policy, you may be uncertain of how to respond in an ethical and supportive way. The new Practical Guide addresses that challenge with the following two modules.
a) A module on “Lenses for
Inclusive Practice” contains units on these subjects. • Trauma-informed practice • Cultural humility and safety • Age, disability, and dementiafriendly practices • Gender dynamic related to elder abuse • Sexual orientation and gender identity
Each of those sections explains the approaches and how they can enhance your client and community work. They also link to critical resources developed by Myrna McCallum (Trauma-Informed Legal Practice Toolkit and podcast), the Provincial Health Services Authority (San’yas Indigenous Cultural Safety Training), the Alzheimer Society of Canada (Person Centred Language Guidelines), and others. b) The Guide also includes 12 guiding principles for best practice, a general section on “What is Elder Abuse and
Neglect?” and a glossary of terms.
Elder Abuse and BC Laws
Although summaries of elder abuse law for BC tend to focus on the Adult Guardianship Act, a number of laws form part of BC’s elder abuse legal framework. Three Key Statutes • Adult Guardianship Act (Part 3) • Family Law Act (Part 9) • Community Care and Assisted
Living Act
1.) Adult Guardianship Act
Like six other Canadian jurisdictions, BC has adult protection legislation. The adult protection provisions are found in Part 3 of BC’s Adult Guardianship Act.
The Adult Guardianship Act does not create a duty to report abuse or neglect and its scope is not limited to abuse of older people. The Act mandates a number of agencies to respond to reports of abuse, neglect, and self-neglect of adults who are unable to seek support and assistance themselves due to restraint, disability, illness, or disease.
The Act grants those agencies broad powers of response ranging from offering a tailored support and assistance plan to address health care needs; to entering the premises to forcibly remove the vulnerable person, take the individual to a safe place, and provide emergency care. The designated agencies in BC are currently • the five health authorities, • Providence Health Care, and • Community Living BC. The Adult Guardianship Act applies only to adults who cannot understand their situation or access help on their own because as a society we recognize that competent adults have a right
to make their own choices, including living in risky situations.
The Act defines abuse very broadly to include physical, sexual, financial, and emotional abuse. It also specifically includes “overmedication, withholding needed medication, censoring mail, invasion or denial of privacy, or denial of access to visitors.” Neglect is defined to include circumstances of self-neglect.
2.) Family Law Act
The Part 9 of the Family Law Act allows the Court to grant a civil protection order if a person is experiencing family violence or is at risk of family violence. In the case of elder abuse, an order can be obtained against • a spouse or former spouse of the older person; • a person with whom the older person lives or previously lived, in a marriage-like relationship; or • a relative the older person lives with, including relatives of a spouse or former spouse. Family violence is defined very broadly. It includes stalking and “threats respecting other persons, pets, or property.”
The Court’s powers are limited to granting protection orders. Possible terms of a protection order include these. • No direct or in-direct communication with the older adult • Staying away from specific locations (not limited to the residence) • Restrictions on the possession of firearms of other weapons • Removal of the abuser from the residence by a police officer • Police accompaniment to collect belongings • Seizure of any weapons by police • Any terms or conditions the Court considers necessary to protect the safety and security of the atrisk family member. A protection order generally
requires an application to the Court. A person experiencing family violence can apply for an order or someone can apply on the person’s behalf. A judge also has the discretion to make a family violence order in the context of any proceeding under the Family Law Act. As compared with the Adult Guardianship Act, the Court may intervene before violence has occurred, if it determines that violence is likely to occur.
3.) Community Care and Assisted Living Act
The Community Care and Assisted Living Act governs long-term care and assisted living in BC. The law says that people living in long-term care and assisted living have a right to be protected from abuse and neglect. The Act requires operators of assisted living and long-term care facilities to respond to all incidents of abuse and neglect and to report to specific individuals.
The Community Care and Assisted Living Act also contains new protections intended to guard against financial abuse or undue influence by assisted living facilities and their staff (see section 28.1). The operator of an assisted living facility or its agents
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Do You have a Duty to Respond to Elder Abuse?
In December 2021, the BC Seniors Advocate released a systemic review of elder abuse and neglect. The report, "Hidden and Invisible," criticizes BC’s regime for response as being fragmented. It calls for a central, single point of contact for reporting elder abuse similar to what exists for child protection in BC. That approach would reflect a fundamental change in BC law. It is problematic because older people are entitled to both privacy and respect for their decisionmaking autonomy. Ageing does not dissolve those legal rights.
In BC, instead of having a mandatory reporting requirement, we have various laws that create options for different kinds of response depending on the situation.
Sometimes, for example, when we witness violence and an older person is at risk of immediate physical harm, we should call 911. Some situations call for a report to a designated agency under the Adult Guardianship Act. For example, if an older person living with advanced dementia is being neglected and the person cannot reach out for help, we should contact the relevant provincial health authority so they can assess the situation. An older woman experiencing spousal violence may appreciate support to get a civil protection order.
Other times, such as when we can see an older man’s health declining and he is afraid of a family member who yells at him frequently, the better approach might be to ask how he is doing, keep in regular touch, let him know about helpful agencies, and help him call the agencies when he is ready. Abuse robs a person of freedom. Best practices, which we cover in our Practical Guide, emphasize responses that do not further undermine autonomy.
None of this means that inaction is OK. Elder abuse always requires a response; it does not always require a report, however. As citizens, we all need to find ways to respectfully offer support to older people who are being abused.
The “It’s Not Right! Program” of the BC Association of Community Response Networks offers workshops to help British Columbians learn how to respond to abuse and neglect of vulnerable adults. BC law is complex but it provides you with many options; our Practical Guide to Elder Abuse and Neglect Law in Canada is there to help you decide what to do in different situations.
To learn more about the Practical Guide to Elder Abuse and Neglect Law in Canada, you can listen to one of our upcoming webinars. Follow us on Twitter @ CCElderLaw or register for our newsletter to get updates with webinar registration information. www.bcli.org/ccel.
The Practical Guide website was made possible by funding provided by the Department of Justice Canada Victims Fund, the BC Association of Community Response Networks, and Elder Abuse Prevention Ontario. s Krista James is a lawyer and National Director of the Canadian Centre for Elder Law.
