Elder Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Elder Law Review |
|
Margaret Isabel Hall, LLB, LLM
“Elder abuse” has been recognised by governments in Canada and in jurisdictions such as Australia, the United Kingdom and the United States as a significant social problem. The question of whether that social problem requires a legal response and, if so, what form that response should take remains the subject of (often intense) debate.[1] Identification of elder abuse as a social problem does not immediately translate into a parallel identification of elder abuse as a new category of law. The processes are separate and distinct. An important policy question following the identification of a social problem is whether the law provides the most appropriate response to that problem; whether the social problem should be articulated as a legal problem.
The identification of elder abuse as a social problem may have implications for and effects on existing laws, even if no new legal category (“elder abuse”) is created in response to that social problem. Identification of the social problem provides insight into particular group vulnerabilities to certain crimes, in terms of both susceptibility and impact. Similarly, civil laws such as domestic violence legislation may be drafted and implemented to be more responsive to the needs of older adults. Nunavut’s Family Abuse Intervention Act[2] is an example of domestic abuse legislation that is inclusive of intergenerational relationships and the kinds of behaviours that are more typically associated with elder abuse in domestic settings (psychological and financial abuse in addition to physical abuse). “Family abuse” is defined in the Act[3] as occurring “when a person, a child of or in the care of a person, a parent of a person or another family member of a person is subjected to one or more of the acts or omissions listed in section 3 by another person with whom the person has
(a) a spousal relationship;
(b) an intimate relationship;
(c) a family relationship; or
(d) a care relationship.
Acts constituting “family abuse” include:[4]
(a) an intentional or reckless act or omission that causes, or a threatened act or omission to cause
(i) injury, or
(ii) damage to property in the context of intimidation;
(b)
an intentional, reckless or threatened act or omission that causes, or
a series of intentional or threatened acts that cause
a reasonable fear of
(i) injury, or
(ii) damage to property in the context of intimidation;
(c)
sexual abuse, including sexual contact of any kind that is coerced
by force or threat of force;
(c.1) sexual abuse of any kind, including sexual exploitation, sexual
interference and encouragement or invitation to sexual contact, of a person with a mental or physical disability or a child;
(d) forced confinement;
(e) conduct that reasonably, in all the circumstances, constitutes mental or emotional abuse;
(f) an intentional or reckless act or omission that unjustifiably or unreasonably deprives a person of food, clothing, shelter, medical attention, transportation or other necessities of life;
(g) 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.
Identification of elder abuse as a social problem also makes visible the similarities and connections between crimes and civil wrongs when they are committed against older persons. Understanding those connections may enhance both response and prevention, in the civil and the criminal sphere.
Specific elder abuse legislation is another kind of response to the social problem of elder abuse. Elder abuse legislation is justified as necessary on the basis that laws of general application ate insufficient, even if written with the older adult in mind, and that the nature of the social problem demands a new and specific legal response.
Elder abuse legislation, where it exists, does not replace the criminal code. Crimes committed against older adults remain crimes. Nor does elder abuse legislation replace the applicable civil law. These avenues for legal recourse will remain alongside elder abuse legislation. The argument for elder abuse legislation is that existing laws are inadequate in terms of both the kinds of harms they address, excluding some behaviours identified within the analysis of elder abuse as a social problem, and the responses they can provide.
Adult protection legislation, although not limited in application to older adults, is another legal response to the social problem of elder abuse. Adult protection legislation recognizes that existing laws are inadequate with regards to the protection of a wider class of adult persons. Older adults may be referred to explicitly as a category of persons within this wider class. Like elder abuse legislation, adult protection legislation exists alongside laws of general application.
Unlike domestic violence legislation, which facilitates victim-initiated access to justice, provision for third-party initiated intervention is a key element of adult protection legislation. In this respect, adult protection legislation looks more like child protection than domestic violence legislation (and adult protection provisions may be included in a single piece of legislation alongside provisions relating to child protection).[5] Criminal law also allows for state intervention but, unlike child protection (which focuses on the situation of the child), the criminal focus is on the wrongdoer and, specifically, his or her intent. Criminal law’s intervention is justified, to a significant extent, by the moral blameworthiness associated with that intent. The victim-focus permitted in child protection is a special exception to legal norms regarding intervention and is justified by children’s special social position as legally and economically dependent objects of public concern.
This point of resemblance between adult protection legislation and child protection- civil legislation allowing for state intervention in otherwise private relationships- has been a powerful, if unarticulated, shaping force in adult protection law. The perceived importance of avoiding the child protection comparison has framed the adult protection discussion to focus on a defining characteristic of legal adulthood: autonomy. The consequence of that focus is, for victims, the autonomy/capacity duality, and a pseudo-criminal focus on perpetrator intent that differentiates adult protection legislation from child protection but, arguably, makes it less useful as an alternative to the criminal law (by incorporating key aspects of the criminal paradigm).
This paper deals with the question of whether and how adult protection legislation can respond coherently and non-paternalistically to the specific problem of the material exploitation of older adults in the domestic setting. I conclude that the autonomy/incapacity duality and the autonomy ideal it enforces is inadequate and deeply unrealistic in this context, especially when applied to the current generation of older women. Equity’s paradigm provides a more coherent and helpful response; a plaintiff or victim centred approach justified on the basis of principles far removed from the child protection paradigm..
Adult protection legislation raises significant theoretical or conceptual challenges on two fronts: for whom is legal protection justified, and from what conduct and/or consequences? In Canada the “who” question is generally[6] given a narrow answer: adult protection legislation provides for intervention on behalf of the incapable (persons lacking mental capacity) and those unable to access protection independently. British Columbia’s Adult Guardianship Act (Part Three),[7] for example, provides “for support and assistance for adults who are abused or neglected and who are unable to seek support and assistance because of physical restraint, a physical handicap that limits their ability to seek help, or an illness, disease, injury or other condition that affects their ability to make decisions about the abuse or neglect.”[8] A finding of abuse will result in an offer of services and supports to the victim. The person to whom this offer is made is conceived of as free to refuse or accept, unless he or she is shown to be “incapable.” Consistent with the autonomy ideal, the conceptual framework underlying this response is that capable adult individuals (even those who cannot independently access assistance) are free to choose objectively abusive living situations.
This limited scope is congruent with and puts into effect the autonomy/capacity duality, a framing device through which the law “sees” only autonomous persons whose decisions, good or bad, are freely chosen (and therefore legally unimpeachable) or incapable persons who (like children) cannot make “true” decisions and whose best interests are the law’s proper concern. The autonomy/capacity duality is one expression or manifestation of an autonomy ideal. The effect of the ideal and the duality device is to exclude the vulnerable but capable from the ambit of protective legislation.
Some jurisdictions have determined that older adults per se (in addition to the incapable and those unable to independently access protection) are entitled to legislative protection by virtue of age-status. Adult protection legislation in several American states[9] applies explicitly to two distinct classes of persons: the incapable and the “elderly” or “elderly persons” (per se, with no additional finding of incapacity). This approach has been much criticised as paternalistic and infantalising.[10] Specific inclusion of the elderly alongside the incapable implicitly retains and perpetuates the “frame” of the autonomy/capacity duality with one additional information: that older adults are incapable-equivalent by virtue of age alone. The equivalence has no rational basis aside from a certain rough practicality, and the equation of age with incapability increases the social vulnerability of older adults by reinforcing ageist stereotyping.
From one perspective, “elder protection” legislation incorporating (implicit) age/incapacity equivalence is a practical response to a significant social problem; the vulnerability of many older adults to abuse and exploitation by others in situations where victims are otherwise mentally capable. The scope and severity of the problem compels a response and elder protection legislation of this kind provides it by tagging onto the most relevant existing legislative model, despite the conceptual difficulties involved (the age/incapacity equivalence).
“Abuse” attracting investigation and possible intervention is generally defined in Canadian adult protection legislation in terms of intentional wrongdoing, incorporating a criminal paradigm. British Columbia’s Adult Guardianship Act (Part Three), for example, defines “abuse” as the deliberate mistreatment of an adult that causes the adult:
(a) physical, mental or emotional harm, or
(b) damage to or loss of assets,
and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors.” (section 1)
Interestingly, legislation applying exclusively to abuse of adults in institutional care generally takes a broader approach and does not require that abuse be intentional or deliberate.[11]
The criminal paradigm reflected in the requirement of deliberation or intention is consistent with and generally responsive to physical abuse; less so to sexual abuse; and still less descriptive of and responsive to financial abuse or material exploitation. Where sexual abuse is not violent, and the victim is an adult with capacity, it will be as difficult to show for the purposes of the Adult Guardianship Act (Part Three) as under the Criminal Code.[12] Emotional abuse is less problematic as conduct comprising emotional abuse is not normatively conceptualized as positive in the way that sexual relations are.
Financial abuse/material exploitation of older adults in the domestic setting poses special problems for the intentional paradigm. Material exploitation is frequently defined with reference to the intentional blameworthiness of the abuser: the “illegal or improper exploitation of an older person’s funds, property or assets… cashing an elderly person’s cheques without authorisation, forging an older person’s signature, misusing or stealing an older person’s money or possessions, coercing or deceiving an older person into signing any document (a will for example), and the improper use of guardianship or power of attorney.”[13] Ambiguity around questions of blameworthiness and fault is a hallmark of material exploitation in the domestic setting, however: was the withdrawal of an older person’s funds done with that person’s authorisation, or was it a “mis-use”? Was the benefit conferred (money or property) a theft or a gift, or given in compensation to a caregiver for care provided? Was the older person “coerced” into changing a will to favour a certain individual or was that change undertaken to recognise a particularly close friendship? Is the old man who lives with and supports a young woman and plays host to her friends the victim of exploitation, or an unconventional individual who declines to “act his age”? In many factual situations, these questions will be impossible to answer. The parties themselves may experience shifting emotional evaluations of their circumstances. “In a relationship in which one person is likely to want to give and the other is likely to feel an entitlement to receive, how can the law identify improper transactions?”[14]
Defining “abuse” in terms of an abuser’s intent works to the same purpose as limiting the application of adult protection legislation to the incapable and the restrained; the protection of individual autonomy by limiting intervention to situations easily recognizable (because of resemblance to the criminal paradigm) as intervention-justified. On one policy and social level, this is right; society wants to deter those who would intentionally exploit individuals who cannot protect themselves, and to frustrate their efforts. On another level, however, this approach is much too narrow, effectively editing out the much greater range of intent-ambiguous situations which are nevertheless a source of loss and harm for many older adults.
The principles of Equity provide both the policy rationale and conceptual mechanism for responding to intent-ambiguous material exploitation. Abandoning the autonomy/capacity duality altogether, the idea of contextual vulnerability developed through equity provides a coherent, appropriately inclusive (neither under nor over) conceptual framework for adult protection legislation that provides for third party initiated intervention. Legislation that applies to the “vulnerable adult” will provide special protection for older adults to the extent that older people are especially likely to fall into this category, for reasons associated with both personal and social vulnerability and the interplay between them.
The autonomy/incapacity duality poses mentally capable adults as, by definition, autonomous and self-interested decision makers (the corollary being that the adult who is not “autonomous” in this sense is not capable). The decision to remain in an abusive relationship reflects the autonomous individual’s personal- if idiosyncratic- determination of his or her wishes, or choice. That choice must be considered freely made unless the individual is mentally incapable (in which case he or she is, like a child, unable to recognise personal best interests). The guiding principles set out in section 2 of the Adult Guardianship Act embody the duality and the autonomy ideal from which it derives, that “all adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters.”
Abuse and exploitation of older adults in the domestic setting will often be a function of the relationship in which it occurs, however, rather than a discrete, intentional act. The effect of relationships of power conducive to abuse or exploitation is to impair the autonomy of the “weaker” party and, in particular, the ability to choose in one’s best interests- not through diminished capacity but through the power dynamics of the relationship itself.
The autonomy ideal is particularly inadequate when applied to the current generation of older women, whose understanding and experience of personal choice will have been deeply informed by the cultural expectation that women’s self interests should be subordinated to others (children, husbands) in traditional family relationships. Refusal of services by older women living in this kind of relationship context may have little to do with either autonomous free choice or diminished mental capacity.
Consider the following example:
Mary Wilson is an 82 year old woman who is suffering from emphysema, severe arthritis and has signs of early dementia. Prior to her recent hospitalization, she lived with her husband of over fifty years and was dependent upon him for assistance with all of her daily care needs. His ability to provide this care is questionable – he is unable to establish reasonable routines for her care, prevents Mrs. Wilson from having contact with others, is routinely overheard by neighbours verbally berating Mrs. Wilson, and is physically rough with her. Several months ago, Mrs. Wilson was admitted to the hospital in very poor physical condition – she was confused, emaciated and dehydrated. She improved dramatically and against the advice of the health care team, she returned to her apartment under the care of her husband. Both refused all home supports but did co-operate with periodic physician visits. Recently, during a visit by the family physician, Mrs. Wilson was found to be dehydrated, malnourished and very weak; she requested that she be taken to the hospital. Her condition is now stabilized and her husband is insistent upon once again bringing her home. Mrs. Wilson indicates that she is quite frightened by her husband and does not believe he can take care of her but she is not agreeing to remain in care nor will she agree to a restraining order against Mr. Wilson even though he is becoming increasingly belligerent and threatening.
The autonomy/incapacity duality model frames the legal “picture” of adults in abusive relationship contexts and the way in which we read the story of Mrs. Wilson: Mrs. Wilson is mentally capable, therefore she is making a free choice to refuse services and return to a living situation which poses real danger to her health and well being despite the fact that, if there is any further decline in her condition or escalation of Mr. Wilson’s threatening behaviour, Mrs. Wilson knows she will be unable to protect herself or access assistance independently. This choice may be objectively unwise, but it is Mrs. Wilson’s autonomous choice: perhaps she prizes staying home above all, perhaps she prizes staying with her husband, despite his behaviour, through loyalty or love. Whatever the reason the choice is Mrs. Wilson’s and must be honoured.
This reading is not inevitable but is compelled by the frame created by the legislation (and the underlying autonomy/capacity duality). Outside of that frame, one might read the story as involving Mrs. Wilson’s vulnerability in her relationship and living context and the dynamic between that vulnerability and Mrs. Wilson’s ability to choose her own health and safety over her husband’s wishes. Vulnerability provides a “third way” of seeing and understanding Mrs. Wilson’s position, neither autonomous free choice nor diminished mental capacity, that is more congruent with Mrs. Wilson’s reality. In a sense, equity’s vulnerability is Carol Gilligan’s idea of relational autonomy, “a world comprised of relationships rather than of people standing alone, a world that coheres through human connection rather than through systems of rules.”[15] The equitable perspective or world view is an essentially feminist perspective.
The autonomy/incapacity duality and its conceptual counterpart, the autonomy ideal, has remarkable resonance and power in adult protection, despite its inability to “see” and provide for Mrs. Wilson’s predicament. The power of the ideal in this context draws strength from the fear that recognising personal vulnerability increases social vulnerability, the more significant source of harm, to the extent that it reinforces ageist presumptions of weakness and incapacity. A “framing” theory of vulnerability in the adult protection context must be conceptually coherent and consistent with legal principle generally, including respect for personal autonomy and the freedom to make “bad” choices. A theory of vulnerability that is rational and legitimate must also avoid age/incapacity equivalence, which increases social vulnerability. Theories of vulnerability developed in equity and, in particular, the doctrines of equitable fraud, provide the necessary conceptual framework.
The autonomy/incapacity duality effectively edits out vulnerability which is then legally invisible. If one understands the condition of vulnerability as “incapacity lite”- not incapable, but not able to make “good” or approved decisions on a consistent basis- this editing out is the only means of avoiding the legal review of decisions on the basis of popular ideas of morality, good taste, or responsible behaviour. Yes, the community expected Mrs. Smith to live quietly and frugally and leave everything to her children but Mrs. Smith surprised them all by taking lavish vacations with a new and younger friend. Nobody would argue that Mrs. Smith’s unorthodox decisions and behaviour should invite intervention and review because of their departure from social expectations and norms.
Properly understood, however, vulnerability as a legal concept is not primarily or fundamentally referable to objective bio-physical “weaknesses” (the capacity-lite concept) but to relationship power dynamics. This idea of a (legally significant) situational or contextual vulnerability originates in the doctrines of Equity, with undue influence and unconscionability (the doctrines of equitable fraud).
Undue influence and unconscionability are related, but distinct. The inequity of the unconscionable transaction lies in one person’s exploitation of the vulnerability of another. The inequity of undue influence lies in the effect of one person’s “undue” influence on the ability of another to give free and independent consent. In neither scenario does the “weaker” party lack capacity; vulnerability arises through the
power dynamics of the relationship together with personal and social factors going to dependence and inequality.
Vulnerability is defined within the doctrine of undue influence as a constructed and situational state of being arising from the interplay between relationship context and personal characteristics in a particular situation, as opposed to a constant and organic status (bio-capacity). The doctrine is engaged with the impact of that vulnerability on a person’s ability to consent in the context of a relationship which is the source of vulnerability. “Influence” is “undue” because of its effect on the individual’s ability to exercise free choice and, in particular, to choose her own best interests over the interests of the other individual in the relationship. The influence-er is relevant only insofar as he or she relates to, produces or shows impact on this ability to choose, or consent. Birks and Chin described undue influence as “plaintiff sided,” focused on “impaired consent” rather than “wicked exploitation.”[16] Indeed, the good son who acts only in his mother’s best interests, described by the Court as “honest, reliable, very reserved and anything but aggressive and demanding” may nevertheless exert undue influence over his mother through her “confidence and trust” in him, justified though that be.[17] Undue influence in this kind of circumstance arises through the internal dynamics of a certain kind of relationship, in which the “potential for domination” is “inherent in the relationship itself.”[18]
Where the relationship between A and B is one in which the potential for domination is inherent in the relationship itself, a presumption of undue influence arises where A confers a benefit on B. This presumption will be displaced if B can establish that, despite the relationship, A did in fact freely consent to the transaction, but this is for B to prove if B is to keep the benefit. The policy rationale for the rule was described by Justice Sachs in the case of Lloyd’s Bank v Bundy[19]: the court “interferes not on the ground that any wrongful act has been committed by the donee but on the ground of public policy and to prevent the relations which existed between the parties and the influence arising therefrom from being abused.” Relationships giving rise to a presumption of undue influence are by their nature private and the “dominant figure” in that relationship is the only one in a position to prevent that influence from being “abused” (“abuse” in this context “mean[ing] no more than that once the existence of a special relationship has been established, then any possible use of the relevant influence is, irrespective of the intentions of the persons possessing it, regarded in relation to the transaction under consideration as an abuse- unless and until the duty of fiduciary care has been shown to be fulfilled or the transaction is shown to be truly for the benefit of the person influenced.)[20] It is for this reason both fair and just to require that dominant figure, where he or she has received a benefit in the context of that relationship, to take active steps to ensure that the transaction was indeed freely chosen.
Certain classes of relationships will always give rise to a presumption of undue influence; lawyer and client, for example, or parent and minor child. Outside of this limited class, other relationships may give rise to the presumption if, on close examination of a particular relationship, they contain broadly analogous qualities of trust and dependence. No more precise formula is appropriate; relationships in which one party develops a dominating influence over another are "infinitely various" and there is no substitute for a "meticulous examination of the facts".[21] As Justice Sachs explained in Bundy, “it is neither feasible not desirable to attempt to closely to define the relationship, or its characteristics, or the demarcation line showing the exact transition point where a relationship that does not entail the duty passes into one that does.”[22]
Lord Browne Wilkinson, in Barclay’s Bank v O’Brien,[23] suggested a third class of relationship: relationships which will not always and automatically raise the presumption, but which are more likely to raise a presumption of undue influence than other kinds of relationships. Browne Wilkinson referred to this class as requiring an approach of “special tenderness.” The relationship at issue in Barclay’s Bank v O’Brien was the relationship between husband and wife. The wife had provided a guarantee for a loan to her husband’s business; the business had been unable to make its payments and the bank now sought to collect from the wife. The wife argued that the guarantee could not be enforced on the basis of undue influence. The undue influence in question had, in this case, been exercised by the husband (and not the bank itself, as successfully argued in Lloyd’s Bank v Bundy).
Rejecting the argument that the wife/husband relationship should always give rise to a presumption of undue influence (on the basis that this was both unrealistic and reinforced gender stereotyping), Lord Browne Wilkinson acknowledged that, for several reasons, undue influence was more likely to be a relevant factor in this kind of relationship than in others. The emotional and psychological ties inherent in the spousal relationship generally made the undue influence dynamic more likely while making it less likely that the vulnerable person would seek professional advice or input. An attitude of “special tenderness” on the part of the courts was therefore justified when considering the question of undue influence. Lord Browne Wilkinson suggested that courts apply this special tenderness approach not just to marital relationships but to other relationships of co-habitation, which would tend to share the same relevant characteristics, and to the relationship between “aged parent and adult child,” citing the case of Avon v Bridger.[24]
Can we say that the undue influence analysis should apply in any particular way to older adults? A survey of the case law reveals numerous cases involving older adults in which undue influence is alleged.[25] Factors which will be relevant to an undue influence analysis generally will often, although not always, be factors that are associated with the social and physical consequences of the aging process in certain kinds of relationships. This understanding is no more ageist than the recognition that certain factors will be more likely to impact the lives of women than men, visible racial minorities than members of the racial majority, so long as that understanding is grounded always in the particular, what Lord Scarman described as “a meticulous examination of the facts" of each individual’s situation.
The undue influence frame makes a particular quality of both vulnerability and abuse visible to the law. Vulnerability, through the undue influence frame, is a consequence of an impaired ability to choose in one’s one best interest, as opposed to the interests of another, in the context of a particular relationship. Dependency and power imbalance are significant but, crucially, there is no requirement that these qualities be consciously fostered or aggravated by the “stronger” party. “Abuse” in this context involves the failure to exercise the responsibility inherent in relationships of undue influence, a significant departure from the conventional intentional/criminal paradigm.
Equity sets aside transactions that are deemed to be “unconscionable” on the basis of exploitation; because an unconscionable transaction is the product of one person’s exploitation of another, it would be inequitable to give it legal effect. If undue influence is “plaintiff-sided” unconscionability is a “defendant sided” doctrine; the inequity arises from the conduct of the defendant.[26] There can be no unintentional unconscionability.
Unconscionability, like undue influence, “sees” vulnerability as both constructed and situational, with relative weakness defined with reference to the power balance in a particular relationship. Where an inequality between the parties puts one (the “weaker”) in the power of the other (the “stronger”), and where the bargain is substantially unfair to the benefit of the stronger, a presumption of unconscionability will be raised This presumption will be rebutted if the defendant can show that the bargain was fair, just and reasonable.
Inequality in this context refers not to objective inequalities, such as disabilities (which may be understood as objective inequalities) but an inequality that, in the context of the relationship, impairs the individual’s ability to protect his or her own best interests. A blind person, for example, may well be capable of protecting his or her interests and if so, will not be “weaker” in the sense that he or she is in the power of the other player in the relationship.[27] Chronic drunkenness, in comparison, is more likely to have the relevant psychological effect, striking at the ability of an individual to advance or protect his interests, and the defendant who knowingly takes advantage of that inability will be behaving unconscionably for the purposes of the doctrine.[28]
Age, like other objective “weakness,” does not in itself create an inequality for the purposes of the doctrine, nor should age itself be an independent factor going to the balance of power between the parties. Factors or characteristics generally associated with the ageing process will be relevant in this context, however: loneliness and social dependence; fearfulness about the future (who will provide for me if not the “stronger” party?); a lack of knowledge regarding current business practices and values; the lack of assertiveness and confidence that may accompany physical decline; the occasional confusion and lack of clarity (short of incapacity) preceding dementia. What must be shown, where the relevant weakness exists, is that the stronger party took advantage of that weakness to the detriment of the weaker person.
In the case of Matheson Estate v Stefankiw,[29] for example, the elderly transferee Matheson (now deceased) had transferred his property at a price below its actual value. The transferors were long term tenants on the farmland in question. Mr. Matheson showed several signs of objective weakness: as he grew older, he became increasingly reclusive and fearful of dealing with strangers. His health and hygiene had deteriorated to a striking degree. He had begun to experience occasional delusional episodes- not sufficient, apparently, to lead to a conclusion of incapacity (and a conclusion that the transfer was void on that basis) but sufficient to place Mr. Matheson in the “grey zone.” The tenants had provided assistance to Mr. Matheson over the years, and he was comfortable with them.
The Court concluded that, in the circumstances, Mr. Matheson had obtained something of real value through his transaction with the defendants aside from the price paid for his property. Mr. Matheson’s gratitude to his tenants, and ability to express his gratitude through the transfer, had worth to him, and the transfer to his tenants spared him the “agony” of having to deal with strangers. The tenants had not initiated the transfer- it was Mr. Matheson’s idea- nor was there any evidence that they had pursued the transfer or in any other way sought to exploit their neighbour and landlord. Aware of Mr. Matheson’s increasing difficulties, the tenants responded with assistance and support, rather than exploitation. Under the circumstances, the transaction was not unconscionable (nor was undue influence shown).
Matheson Estate v Stefankiw illustrates the distinction between a “plaintiff sided” undue influence analysis and a “defendant sided” analysis of unconscionable transactions, as well as the points of similarity between the two. Most obviously, unconscionability asks us to consider the element of intentional exploitation which, while it may provide evidence of “actual” undue influence, is not the focus of the undue influence inquiry. Within each analysis, however, those elements of personal vulnerability which may give rise to a presumption of undue influence in a particular relationship will also be relevant in the relationship analysis for unconscionability (to show that the relatively weaker party is in the power of the relatively stronger). The relevant elements of constructed vulnerability- arising from both relationship context and personal characteristics- will tend to be the same. It is the ultimate meaning of that vulnerability within each analysis that is separate and distinct- the impact on the plaintiff’s ability to consent, on the one hand (undue influence), and the exploitation it enables, on the other (unconscionability).
Both undue influence and unconscionability provide a framework for understanding vulnerability which is specific to each individual, turning on the particular facts of the individual’s social situation, internal characteristics, and relationship context. Each analysis is sophisticated and particular, avoiding harmful stereotypes (“the aged are doddery of mind”[30] or all older adults lack mental capacity to make decisions) while recognizing that characteristics associated with aging do create vulnerability and, on that basis, will often be a source of unfairness and harm. The doctrines are sufficiently flexible to allow for individual differences alongside this recognition, as Matheson Estate v Stefankiw shows. The famous case of Re Brocklehurst,[31] considering alleged undue influence, provides another example. The case concerned a (now deceased) Lord, who had gifted his estate to a younger man who owned a nearby garage. Lord Brocklehurst and the garage owner had become friends, with the garage owner providing assistance in numerous ways to his older friends. Lord Brocklehurst emerges from the narrative of the case report as an eccentric “character,” autocratic and strong willed; the court concluded that, in the context of this particular relationship, and despite Lord Brocklehurst’s failing health and objective weakness and degree of physical dependence, the Lord was in fact the psychologically dominant figure and the garage owner his dutiful factotum.[32]
The doctrines of undue influence and unconscionability are of course available to provide recourse to any aggrieved plaintiff who can bring him or her self within the required theoretical framework. A further question is the extent to which Equity’s paradigm can or should be taken out of its particular private law context.
The role of legal theory is to understand and explain reality and, in particular suffering and unfairness, in a way that is legally intelligible; to explain unfairness as injustice. Legal theory cannot, generally, be directly transferred into legal rules, but provides the necessary conceptual underpinning for legislative reform and common law development, a way of understanding that is capable of translation into “the law.” Once vulnerability is “seen” through Equity’s lens, for example, its editing out as legally irrelevant must be explained and justified. If no justification is supportable, the next step is to give that theoretical understanding expression within the law itself.
The doctrines of equitable fraud have long applied to private transaction.. In the common law, equity’s conceptualization has also informed the analysis of consent in the context of tort, outside of the equitable and the transactional context, with the decision of the Supreme Court of Canada in Norberg v Wynrib.[33]
The issue in that case was whether the plaintiff, a woman who had engaged in sexual contact with her doctor, had consented to that contact. The doctor had been providing the woman with drugs, on the basis of a tacit agreement that she provide sexual favours in return. The Court cited to Salmond and Heuston on the Law of Torts for the proposition that "A man cannot be said to be `willing' unless he is in a position to choose freely; and freedom of choice predicates the absence from his mind of any feeling of constraint interfering with the freedom of his will".[34]
A "feeling of constraint" so as to "interfere with the freedom of a person's will" can arise in a number of situations not involving force, threats of force, fraud or incapacity. The concept of consent as it operates in tort law is based on a presumption of individual autonomy and free will. It is presumed that the individual has freedom to consent or not to consent. This presumption, however, is untenable in certain circumstances. A position of relative weakness can, in some circumstances, interfere with the freedom of a person's will. Our notion of consent must, therefore, be modified to appreciate the power relationship between the parties….
The doctrines of duress, undue influence, and unconscionability have arisen to protect the vulnerable when they are in a relationship of unequal power….
If the "justice factor" of unconscionability is used to address the issue of voluntariness in the law of contract, it seems reasonable that it be examined to address the issue of voluntariness in the law of tort. This provides insight into the issue of consent: for consent to be genuine, it must be voluntary. The factual context of each case must, of course, be evaluated to determine if there has been genuine consent. However, the principles that have been developed in the area of unconscionable transactions to negate the legal effectiveness of certain contracts provide a useful framework for this evaluation.
… whichever way one approaches the problem, [as undue influence, unconscionability, or inequality of bargaining power] the result is the same: on grounds of public policy, the legal effectiveness of certain types of contracts will be restricted or negated. In the same way, in certain situations, principles of public policy will negate the legal effectiveness of consent in the context of sexual assault. In particular, in certain circumstances, consent will be considered legally ineffective if it can be shown that there was such a disparity in the relative positions of the parties that the weaker party was not in a position to choose freely.”
Equitable theories of consent, vulnerability and abuse also have a particular resonance in the context of the material exploitation of older, capable adults. Vulnerability will arise through the interplay of personal and social characteristics in a particular relationship context. Within that context, the ability to choose one’s own interests over the other is vitiated, and on this basis one’s consent to confer a benefit on the other must be presumed to be impaired (not free) unless positively established otherwise. “Abuse” is established where one knowingly takes advantage or exploits the relationship power imbalance or where one derives benefit in the context of a relationship in which undue influence is presumed without taking affirmative steps to ensure that the consent of the weaker party is “free” (freely taken without reference to relationship pressure).
Some American states have essentially codified undue influence doctrine in legislation. Legislation in the State of Maine, [35] for example, provides that a presumption of undue influence arises where an elderly dependent person has transferred real estate or undertaken a major transfer of personal property or money [representing 10% or more of the elderly dependent person’s estate] for less than full consideration to a person falling within a set of particular kinds of relationships, including family and fiduciary relationships. The transfer may then be set aside unless the older adult was represented in the transfer by legal counsel. An elderly dependent person is defined as a person aged 60 or older who is “wholly or partially dependent upon one or more other persons for care and support.” How helpful is this straightforward translation of the doctrine to an older woman like Mary Wilson, in the example provided above? The rule is applicable only to transactions and will not help Mrs. Wilson with her most significant current problem. Furthermore the rule (like the doctrine), were it applicable to the circumstances, contemplates initiation by Mrs. Wilson which is highly unlikely given the intimate relationship and psychological considerations involved.
Equity theory, drawing on but not strictly equivalent to the doctrines of equitable fraud, allows us to “see” Mrs. Wilson’s vulnerability as a source of inequity, or unfairness, justifying a legal response directed to the nature and cause of that unfairness. The appropriate and workable legal response will not reproduce the doctrines (the approach taken in the Maine legislation referred to above), but incorporate their analysis. Equity theory works here to explain the vulnerability of Mrs. Wilson realistically, and without implying inferiority or lack of mental capacity (avoiding the age/incapacity equivalence). Seen through Equity’s lens we understand why Mrs. Wilson’s situation justifies the third party intervention that is a key feature of adult protection legislation without resorting to either the criminal or child protection paradigm, neither of which is appropriate in this context. Notably, Mrs. Wilson’s vulnerability in and of itself is not the focus but, rather the harmful consequences of her vulnerability in this situation. Where (as in the case of Mrs. Wilson) harmful consequences are associated with circumstances evincing “undue pressure” intervention should follow without the requirement of (intentional) “abuse”; Mrs. Wilson’s ability to freely choose whether to accept or to reject services and/or assistance offered should be evaluated with regard to the pressure/influence dynamics of the relationship in question and not solely on the question of her mental capacity.
Every one of us is almost certain to experience unhappy relationships, mis-placed trust, betrayal, and loss; some of us may seek out legal redress, but very few would expect law’s intervention. How and why is law’s response justified to protect the interests of an older woman like Mrs. Wilson? Is her situation essentially regrettable, but private, and her protection the business of her family and friends? The answer to this question requires a realistic appraisal of those private sources of protection in the current social context.
The story of modernity is, in part, a story about the flight of the individual from community generally and, in particular, from communal oversight and censure. Personal freedom and rights to privacy, defining values of liberal democracy, are the fruits of that process. Like all other goods, however, they have been purchased at a price. Community oversight also has value; most significantly, communal oversight provides important protection for vulnerable persons, providing both security and protection.
Nostalgia is predictable, but communal oversight and involvement can be restored as generally applicable social norms only at intolerable expense to individual freedom and autonomy. Unless one chooses to submit to the communal (through membership in a religious group, for example, or continued allegiance to a community of origin outside of the liberal paradigm) communal intimacy cannot be sustained in a social context in which the primacy of individualism is both encoded in culture and enshrined in law. This idea of community as optional (to be chosen or opted out of in favour of mainstream liberal ideology) is fundamental to modern liberal democracies such as Canada, effecting a balance between plurality and multiculturalism on the one hand and individual freedom rights on the other. The interests of the vulnerable but capable and, crucially, the question of whether protective legislation is justified, must be understood within this wider social context.
This paper asked the question of whether and how adult protection legislation can respond coherently and non-paternalistically to the social problem of the material exploitation of older adults in the domestic setting. The autonomy/incapacity duality and the autonomy ideal it enforces are inadequate and deeply unrealistic in this context, especially when applied to the current generation of older women. The criminal focus on wrongdoer intent is inappropriate; nor is the child protection model directly transferable. Equity’s paradigm provides a more coherent and realistic response to the needs of the vulnerable but capable, providing a theory of vulnerability which captures the real, varied, and often subtle and particular experiences of vulnerable older adults without categorizing all older adults as “vulnerable” per se.
[1] Abuse and Neglect of Older Adults: A Discussion Paper (Ottawa: Public Health Agency of Canada, 2005).
[2] S.Nu. 2006 c. 18.
[3] s. 2.1
[4] S. 3.1
[5] See New Brunswick’s Family Services Act SNB 1980 c. F-22, Part III (Protection Services).
[6] With the exception of New Brunswick and Quebec.
[7] RSBC 1996 c. 6, Section 44.
[8] See also Nova Scotia’s Adult Protection Act RSNS 1989, c. 2 defining an adult in need of protection as a victim of physical abuse, sexual abuse, mental cruelty or a combination thereof, is incapable of protecting himself therefrom by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his protection therefrom.”
[9] See R. Macolini “Elder Abuse Policy: Considerations in Research and Legislation” (1995) Behavioural Sciences and the Law Vol. 13 349 at 351 (Table 1).
[10] Ibid.; S. Coughlan et al “Mandatory Reporting of Suspected Elder Abuse and Neglect: A Practical and Ethical Evaluation” (1996) 19 Dalhousie L.J. 45
[11] The Adult Guardianship Act (Part Three) applies to abuse in both institutional and domestic settings; adult protection legislation applying in the domestic setting only generally defines abuse more narrowly, excluding financial abuse/material exploitation for example.
[12] C.C.C. s. 271 Sexual assault; s. 273.1 Consent; s. 153.1 Sexual Exploitation of Person With a Disability.
[13] Abuse and Neglect of Older Adults: A Discussion Paper (Ottawa: Public Health Agency of Canada, 2005) citing to R. Gordon “Material abuse and powers of attorney in Canada: A preliminary examination (1992) Journal of Elder Abuse and Neglect Vol. 4 173; Health and Welfare Canada Community Awareness and Response: Abuse and Neglect of Older Adults (Ottawa: Health and Welfare Canada, 1993). See also (definitions cited in the PHAC Report) McDonald L. “Abuse and neglect of elders” in J.E. Birren, ed. Encyclopedia of Gerontology: Age, Aging and the Aged (San Diego, CA: Academic Press, 1996) and NCEA What is Elder Abuse: What are the major types of Elder Abuse? above note 3.
[14] Ibid., at 213. Answering her own question, Prof. Carolyn Dessin concludes (after a review of the case law) that judges “ratify transactions they view as ‘normal’ and invalidate those they perceive as ‘abnormal’.”
[15] C. Gilligan In a Different Voice: Psychological Theory and Women’s Development (Cambridge: Harvard University press, 1982) at 29.
[16] See, Birks and Chin, “On the Nature of Undue Influence” in Good Faith and Fault in Contract Law Beatson and Friedman, eds., (1995: London, UK).
[17] See, Zed v Zed (1980), 28 N.B.R. (2d) 580 (QB).
[18] Geffen v Goodman Estate, [1991] 2 S.C.R. 353.
[19] [1974] 3 All E.R. 757 (C.A.).
[20] Ibid.
[21] National Westminster Bank v Morgan, [1985] UKHL 2; [1985] 1 AC 686 (HL) per Lord Scarman.
[22] Bundy, supra note 6.
[23] [1993] UKHL 6; [1994] 1 A.C. 180 (H.L.).
[24] [1985] 2 All E.R. 281 (C.A.).
[25] See, Kovach v Beardsley, [1991] 6 WWR 113 at 120 (Alta. QB).
[26] See, for example, Louth v Diprose, [1992] HCA 61.
[27] Sperling Estate v Heidt (1998), 178 Sask. R. 192 (QB), aff’d. (2000), 199 Sask. R. 256 (CA).
[28] See Black v Wilcox (1976), 12 OR (2d) 759 (CA).
[29] (2001), 191 Sask. R. 241 (QB).
[30] As the presumption of undue influence was incorrectly characterized by Madam Justice Southin in Longmuir v Holland (2000), 192 DLR (4th) 62 (BCCA).
[31] [1978] 1 All ER 767 (CA).
[32] See also Calumsky v. Karaloff, [1946] S.C.R. 110; Kits Estate v. Peterson (1994), 161 A.R. 299 (Q.B.); Zabolotney Estate Committee v. Szyjak (1980) 5 Man. R. (2d) 107 (Q.B.); Scott v. Clancy, [1998] W.W.R. 446 (Sask. Q.B.); and Tracy v. Boles [1996] B.C.J. No. 52 (S.C.).
[33] Norberg v Wynrib [1992] 2 SCR 226.
[34] (19th ed. 1987), at pp. 564-65.
[35] 33 ME REV STAT ANN (West) δ 1022(1)(2001).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/ElderLawRw/2008/9.html