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Older Adults' Personal Relationships

This paper was prepared for the Law Commission of Canada under the title Pourquoi est-il si difficile de lutter contre la violence envers les aînés et en particulier contre l'exploitation économique dont ils sont victimes? The views expressed are those of the authors and do not necessarily reflect the views of the Commission. The accuracy of the information contained in the paper is the sole responsibility of the authors.

Ce document est également disponible en français sous le titre Pourquoi est-il si difficile de lutter contre la violence envers les aînés et en particulier contre l'exploitation économique dont ils sont victimes?

BRIEF BIOGRAPHIES OF THE AUTHORS

PART I:	THE PREVALENCE OF ELDER ABUSE
1.	Introduction
2.	Origin of the Notion of Elder Abuse 2.1 Knowledge of the problem at the time of the adoption of elder protection laws: scarcity of data 2.2 Canadian data on elder abuse at the time of the adoption of elder protection laws
3.	The Remedy: the Adoption of Laws to Protect the Elderly and Abused Adults
4.	The Prevalence of Elder Abuse 4.1 Types of abuse 4.2 Problems inherent to studies of elder abuse 4.3 The overall prevalance rates of elder abuse 4.3.1 Surveys of professionals 4.3.2 Prevalence studies based on the files of service agencies 4.3.3 Studies using a random sample
5.	Physical and Sexual Assault 5.1 Definitions 5.2 Prevalence rates 5.3 Abusers and victims
6.	Psychological Abuse 6.1 Definitions 6.2 Prevalence rates 6.3 Abusers and victims
7.	The Prevalence of Neglect 7.1 Definitions 7.2 Prevalence rates 7.3 Abusers and victims
8.	The Prevalence of Loss of Rights 8.1 Definitions 8.2 Prevalence rates 8.3 Abusers and victims
9.	The Prevalence of Financial Exploitation of the Elderly 9.1 Definitions 9.2 Prevalence rates 9.3 Abusers and victims
10.	Conclusion
PART II:	EVALUATION OF THE ADEQUACY AND EFFICACY OF CANADIAN LAW IN ADDRESSING ELDER ABUSE
1.	Introduction
2.	Methodology 2.1 Determining the state of the law 2.2 Evaluating the adequacy of the law 2.3 Evaluating the efficacy of the law
3.	The Relevant Law in effect in Canada, and in the Atlantic provinces in particular 3.1 The relevant provisions of the Criminal Code 3.1.1 Physical and sexual abuse 3.1.2 Chronic psychological abuse 3.1.3 Neglect 3.1.4 Loss of rights 3.2 The relevant provisions of Canadian common law and Quebec civil law 3.2.1 Physical and sexual abuse 3.2.2 Chronic psychological abuse 3.2.3 Neglect 3.2.4 Loss of rights 3.3 The relevant provisions of laws governing guardianship of the elderly 3.3.1 The laws governing guardianship 3.3.2 The parens patriae jurisdiction of the Superior Court 3.3.3 The laws protecting the mentally ill 3.4 The relevant provisions of the laws governing protection of the elderly and abused and/or neglected adults
4.	Evaluation of the adequacy and efficacy of the law governing protection of the elderly from abuse 4.1 Criteria for evaluating each of the 5 forms of elder abuse 4.2 Evaluation of the adequacy and efficacy of the various elements of Canadian law governing physical and sexual assault and chronic psychological abuse 4.2.1 The adequacy of the law 4.2.2 The efficacy of the law 4.3 Evaluation of the adequacy and efficacy of the various elements of Canadian law governing protection of the elderly from neglect 4.3.1 The adequacy of the law 4.3.2 The efficacy of the law 4.4 Evaluation of the adequacy and efficacy of the various elements of Canadian law governing protection of the rights of the elderly 4.4.1 The adequacy of the law 4.4.2 The efficacy of the law
5.	Conclusion
PART III:	THE CONSTRUCTION OF A CONCEPTUAL FRAMEWORK TO EXPLAIN WHY IT IS SO DIFFICULT TO COMBAT FINANCIAL EXPLOITATION OF THE ELDERLY
1.	Introduction
2.	Reasons for the ineffectiveness of the law in protecting the elderly 2.1 Reasons related to the inadequacy and ineffectiveness of traditional law 2.1.1 Mandatory reporting 2.1.2 Considerable powers granted to social workers 2.2 Institutional reasons 2.2.1 Systemic discrimination: ageism 2.2.2 Police 2.2.3 Lack of resources 2.3 Reasons related to family values 2.3.1 To avoid hurting their children 2.3.2 Shame and guilt 2.3.3 Quality of life 2.3.4 Leave something to the children
3.	Methodology
4.	Results 4.1 The state of Canadian law with regard to financial exploitation of the elderly 4.1.1 The relevant provisions of the Criminal Code 4.1.2 The relevant provisions of Canadian common law and Quebec civil law 4.1.3 The relevant provisions of the laws governing guardianship of the elderly 4.1.4 The relevant provisions of the laws governing protection of the elderly and abused and/or neglected adults 4.2 Evaluation of the adequacy and efficacy of the law in protecting the elderly from financial exploitation 4.2.1 The inadequacy of elements of Canadian law 4.2.1.1 The provisions of the Criminal Code 4.2.1.2 The provisions of common law and the Civil Code of Québec 4.2.1.3 The laws governing guardianship and trusteeship 4.2.1.4 Special legislation to protect the elderly 4.2.2 The ineffectiveness of the elements of Canadian law 4.2.2.1 The efficacy of criminal law 4.2.2.2 The efficacy of Canadian common law and Quebec civil law 4.2.2.3 The efficacy of the laws governing guardianship and of mental health laws 4.2.2.4 The efficacy of laws to protect the elderly
5.	A Conceptual Framework to Explain the Phenomenon: Normative Pluralism 5.1 Normative pluralism in interpersonal relationships 5.2 The normative pluralism of social structures 5.2.1 Boaventura de Soussa Santos' cartography of social systems 5.2.2 Luhmann's social systems 5.2.3 Interaction between the various social systems: the rationality specific to each 5.3 The application of normative pluralism to the problem of protection of the elderly from financial exploitation by their descendants 5.3.1 The State legal system 5.3.2 The professional social system 5.3.3 The familial social system 5.3.4 Interaction between the various social systems to protect the elderly from financial exploitation
6.	Recommendations: How to Effect Change in the Protection of the Elderly from Financial Exploitation

GENERAL CONCLUSION
SUMMARY OF RECOMMENDATIONS
BIBLIOGRAPHY
LIST OF LEGISLATIVE SOURCES
LIST OF CASES

LIST OF TABLES

Table 1	Evaluation of the adequacy and efficacy of Canadian law in protecting the elderly from physical and psychological abuse
Table 2	Categorization of cases referred to Nova Scotia's Social Services from 1986 to 1995
Table 3	Evaluation of the adequacy and efficacy of Canadian law in protecting the elderly from neglect
Table 4	Evaluation of the adequacy and efficacy of Canadian law in protecting the elderly from loss of their rights
Table 5	Comparative table of the powers granted to the police under the Criminal Code and those granted to social workers under New Brunswick's Family Services Act
Table 6	Evaluation of the adequacy and efficacy of Canadian law in protecting the elderly from financial exploitation