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The New Adult Guardianship Legislation and Abuse and Neglect

Pearl McKenzie, Consultant

Over the coming months we will be hearing about plans to build community committees to work under the new Guardianship legislation which is expected to be proclaimed into law during the next year. Committee members will be asked to build an efficient and respectful system to respond to reports of abuse of all adults and, in particular, adults with disabilities and frail seniors.

Committee members will consist of people most affected by the legislation who have some knowledge or experience of abuse and neglect issues. This would include individuals with disabilities, seniors, frontline service providers, advocates and interested others.

These community networks are modelled to some extent on wife assault coordinating committees. Our hope is that the work now being done by women based services will be supported and expanded. In small communities this may mean enhancing groups that have come together around wife assault to ensure the needs of people with disabilities can also be met. In most communities, it will require some negotiation and discussion to explore effective ways of working together. Each community knows best what services are available and how to organize resources.

There is a lot to learn about the areas of common concern and some of the differences between the various groups representing people with disabilities and seniors. We know, for instance, that individuals over age 65 represent more than 80% of the caseload of the Office of the Public Trustee, which looks after the affairs of people who have been found incapable. A number of older people end up in the care of this office because of suspected financial abuse.

And seniors who have the characteristic behaviours of someone who has experienced abuse over a period of time - depression, grief, confusion - are frequently thought to be incapable. What is not known is how many seniors are experiencing abuse and in what number they would be falling under the jurisdiction or mandate of this new legislation.

The people involved in designing this vision of community response did not want to create an entirely new system to respond to abuse of people with disabilities and seniors, for two reasons: they wanted to build on the expertise and experience that already exists in many communities; and they wanted to acknowledge that the person comes before age or disability and not force labels on people by saying, "if you are old or if you have a physical or mental disability you will get this service."

Some provinces in Eastern Canada and some American states have adult protection legislation. In practice the emphasis seems to be on finding someone to be the guardian and decision-maker for the person being abused or neglected rather than returning power to that individual by supporting self-determination.

Research indicates that as many as 50% of younger women with mental illnesses and physical disabilities are abused. This abuse is most often in the form of sexual and physical assaults. Little is known about the experiences of men, including senior men, with disabilities but we do know that the loss or lack of family and friends contributes greatly to vulnerability to abuse.

We are only just beginning to document the stories of seniors who have been abused or neglected. Seniors, because they usually have some assets in the form of a house or property and an assured monthly income from pension cheques, are frequently targets of financial exploitation. And abusers who are largely adult children and other family members have the full range of justifications and excuses that wife assaulters have been known to use.

Taking away older people's control over their income and their right to stay in their own home is an effective means of disempowering them. These actions are accompanied by emotional abuse and, very commonly, the threat or act of physical or sexual violence.

People who have a responsibility to support and help seniors often find it very difficult to confront the abuser. It is not uncommon to find the person who should be intervening falling into a "blame the victim" state of mind. This may happen for a number of reasons that people who work in transition houses and women based services are all too familiar with, including the myth that families look after one another and therefore a hesitation to question the sanctity or privacy of the family. And of course abusers, who are by nature very controlling, know how to use all of this to escape the consequences of their actions.

There has been a lack of appropriate response also because there hasn't been a strong advocacy voice for seniors who are abused and because services for seniors have generally developed in a separate stream from services for women. Some feminist researchers have begun to talk about a "convergence of isms". Sex, age, disability (physical or mental), poverty, and race or culture are just some of the "isms" that compound vulnerability.

When senior women are asked what they value most about their time of life, they always talk about freedom and independence. For the first time, they are not looking after someone else's needs and wishes and have an opportunity to explore their own potential. That is, if they have not had their power of self determination taken from them, if they are not being abused.

Senior men are more likely to speak of appreciating the opportunity to spend more time with their families or to pursue personal interests that during their working lives took a backseat to their jobs. This desire to renew personal connections may make older men, especially widowers, susceptible to unscrupulous advances.

We at B.C.CEAS know that if you are one of the people working to stop violence, you are probably overwhelmed and exhausted by the need for services and help out there. It may not seem fair to ask that you take on yet another cause. However, health care providers (mostly nurses), social workers, family members and advocates for people with mental and physical disabilities and seniors want and need to learn from your experiences. They need you at the table to plan coordinated and complementary services.

The service providers we've been working with in the area of elder abuse say that they need to understand the dynamics of abuse, not to refer someone being abused or neglected to another source of help, but to offer alternatives to the violence and an opportunity to heal.

The new Adult Guardianship Act offers some very practical tools for intervention, including a court order to get past a suspected abuser to talk to the person thought to be experiencing abuse, and removal of the abuser from the home.

In addition to what is already in the legislation, other procedures are in the process of being developed. During the 1995/96 year there will be outreach to interested people and groups throughout the province inviting discussion and recommendations for policy and regulations.

There are already some communities working together very effectively to develop and coordinate services, support and advocacy for frail seniors and people with disabilities. We have much to learn from them. By combining our experience and knowledge, we can make this legislation the best it can possibly be and build communities of people who strengthen each other.

For information about participating in regulation and policy development contact the Office of the Public Trustee at 775-0847.

This part of the Act lays out the definitions and the guiding principles which are as follows:

This Act is to be administered and interpreted in accordance with the following principles:

(a) 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;

(b) all adults should receive the most effective, but the least restrictive and intrusive form of support, assistance or protection when they are unable to care for themselves or their assets;

(c) the court should not be asked to appoint, and should not appoint, decision makers or guardians unless alternatives, such as the provision of support and assistance, have been carefully tried or carefully considered.

Part 2

This part requires that the most effective, but least intrusive, court order be used in each case to assist adults who need help in making decisions. Any application to the Court must contain:

• evidence of need
• evidence of incapability
• a support and assistance plan

There are also new procedures about appointing decision makers and different levels of authority:

• associate decision-maker to assist the adult in making decisions

• substitute decision-maker to make decisions in specific areas, time limited

• guardian to make most of the adult's decisions over a long period of time

Because a person's needs and circumstances change over time, the Act also outlines procedures for periodically reviewing the continued need for a decision-maker or guardian.

Part 3

This section provides some tools for communities to work together to support and help seniors and other adults experiencing abuse and neglect. Each community will be asked to form a network to coordinate services, support and advocacy. They will choose a designated agency to investigate and determine need for support and assistance if there is a report of abuse or neglect.

In those instances where the suspected abuser refuses to allow contact with the adult, it is possible to obtain an order from a Justice of the Peace or a Provincial Court Judge to gain access.

All adults have the right of choice as to whether to accept or refuse the offer of assistance unless they have an extreme mental or physical disability that makes it difficult for them to make a decision. There is a presumption of capability in the legislation and an adult's way of communicating with others is not grounds for deciding that he or she is incapable of making decisions.