PART 2 Webinar Transcript: Older Women’s Rights Matter: Providing Better Support with Legal Challenges in the Context of Abuse Slide 1: Slide Text: Older Women’s Rights Matter: Providing Better Support with Legal Challenges in the Context of Abuse Webinar Part 2 West Coast LEAF & the Canadian Centre for Elder Law Transcript: Thanks for joining the second-part of our two-part webinar series on the legal rights of older women in the context of abuse. We would like to acknowledge that we are broadcasting today’s webinar from Vancouver on unceded Coast Salish territories belonging to the Musqueam, Squamish, and Tsleil-Waututh peoples, and to encourage you to think about the territories where you are doing your own work. Slide 2: Slide Text: Some technical notes Transcript: There is a “raise hand” and “type questions” option on the webinar – let’s test it out to make sure you know how to use it. Today will focus more on finances and access to legal aid for women. Slide 3: Slide Text:
Transcript
PART 2 Webinar Transcript:
Older Women’s Rights Matter: Providing Better Support with Legal Challenges in the Context of Abuse
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Older Women’s Rights Matter: Providing Better Support with Legal Challenges in the Context of Abuse
Webinar Part 2
West Coast LEAF & the Canadian Centre for Elder Law
Transcript:
Thanks for joining the second-part of our two-part webinar series on the legal rights of older women in the context of abuse. We would like to acknowledge that we are broadcasting today’s webinar from Vancouver on unceded Coast Salish territories belonging to the Musqueam, Squamish, and Tsleil-Waututh peoples, and to encourage you to think about the territories where you are doing your own work.
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Some technical notes
Transcript:
There is a “raise hand” and “type questions” option on the webinar – let’s test it out to make sure you know how to use it.
Today will focus more on finances and access to legal aid for women.
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“The older women in their 70s and 80s are a different generation, and they got married for life. There would be a lot of shame in leaving. And they may never have worked: they have no money to leave.”
- Older women’s dialogue project participant
Transcript:
Why are we offering this webinar, and why are we focusing in today’s session on legal issues impacting women’s access to financial resources?
Because we heard directly from older women that poverty and income insecurity were having a huge impact on their safety and well-being, and that there was a lack of accessible legal information to address these issues. In the Older Women’s Dialogue Project, which we described last time, we talked to hundreds of older women in 9 different languages and these were themes that emerged consistently. We will talk later about some of the specific insights these women shared with us.
For now, here is one quotation from a participant to start us reflecting about the issues. Lack of work experience and financial dependency are highly gendered issues for older women. Across many and probably most cultures, there is a common expectation that women should perform unpaid caregiving and household duties and often place the needs of their family members above their own needs. This sexist expectation can create at least two barriers to escaping abuse in the home: lack of financial resources (and sometimes limited experience in dealing with money), and stigma or shame associated with leaving family or a spouse behind.
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Project context and webinar recap
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WEBINAR roadmap – TODAY
• Recap of our May 24th session
• What we have learned about experiences of income insecurity and barriers to accessing legal information from talking to older women through the Older Women’s Dialogue Project
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WEBINAR roadmap – today
• Legal topics relevant to older women’s financial safety:
• Revoking powers of attorney & representation agreements
• Basics of CPP, GIS, and OAS
• Property & pension division after separation
• Other steps to protect property in the context of abuse
Transcript:
Today’s session will introduce some topics that are especially relevant to older women’s financial safety. Of course, the distinction between physical safety and financial safety is somewhat artificial – as you all probably know, physical and financial abuse often occur together, and a lack of financial resources can undermine a woman’s ability to escape physical violence or meet her own basic survival needs. The division of topics is not meant as a prioritization. We had to divide the topics in some way when we know that the legal issues are all deeply intertwined – which is why we are addressing them all in Roads to Safety.
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WHAT WE COVERED LAST TIME
• Legal topics relevant to older women’s physical safety:
• Capacity and decision-making rights
• Protection orders and peace bonds
• Role of the Health Authorities as Designated Agencies
• Intro to the role of the Public Guardian & Trustee
Transcript:
A recorded version of the webinar will be available on our websites. And all of the topics are also covered in Roads to Safety.
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The Canadian Centre for Elder Law
Dedicated to improving the lives of older adults
• Research, writing and analysis for law reform
• Collaboration and consultation with community groups
• Developing materials to help people understand legal rights and responsibilities
Transcript:
Before we get into the subject matter of the webinar, we’ll just remind you of who we are and what we do:
CCEL is national non-profit focused on law and policy issues that impact us as we age.
• Research, writing and analysis for law reform
• Collaboration and consultation with community groups
• Developing materials to help people understand legal rights and responsibilities
All our tools are published on our website and they can be downloaded for free. The url appear on the final slide of this presentation. Many of our recent project work is focused on older women and abuse of older people.
Founded 12 years ago, we are based in Vancouver and form part of the BC Law Institute, which is BC’s non-partisan law reform agency.
We started as a bilingual agency, published materials in English and French and are increasingly publishing tools in additional languages.
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West Coast LEAF
• Promotes women’s equality through law
• Believes differences must be respected and supported by the law, and by social and institutional practices
Transcript:
West Coast LEAF is a non-profit organization that has been around since 1985. It is the first and only organization in BC dedicated to advancing women’s equality through the law.
West Coast LEAF was founded largely with the goal of ensuring that the promise of equality rights in the Canadian Charter of Rights and Freedoms would translate into a more equal reality for all women in their day-to-day lives. The Charter lays out certain fundamental rights and is binding on the federal and provincial governments and government bodies.
West Coast LEAF’s vision of equality is substantive equality: recognizing that people are positioned differently in society and have had different experiences of historic and ongoing inequality (based on gender, age, race, class, disability, sexuality, gender identity, and so much more) and therefore often need to be treated differently in order to have equitable opportunities and/or outcomes – to be able to participate fully in society and to access justice. As we will explain later, we are working to make sure that our Older Women’s Education Project is informed by substantive equality principles.
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Older Women’s Legal Education Project
Transcript:
And a quick recap of the project for any of you who missed last time:
Today’s webinar is part of a larger collaboration between CCEL and WCL called the Older Women’s Legal Education Project. We wanted to fill a gap by providing easy-to-understand legal information that would help older women understand their rights and options in the event that they decide to (or have to) leave their homes due to violence.
We decided to use two avenues to provide legal information for older women fleeing abuse:
1) Roads to Safety, a 90-page plain language legal handbook designed for older women fleeing abuse, including plenty of examples and stories to illustrate the legal concepts, multilingual emergency information in the inside cover, and a multi-page list of resources for support and further information at the end of the handbook. We anticipate that this handbook will be a helpful reference tool for service providers as well as for older women themselves. We received feedback from the community that the breadth of this resource is useful because it means that older women and service providers can find a lot of the legal information they might need all in one place rather than having to piece together information from many different sources. [Direct participants to online PDF version of legal handbook.] At the same time, we also received feedback that such a large handbook might pose a safety risk by being more conspicuous/easily noticed by an abuser, might create information overload for women in crisis, and might present accessibility problems for many women. That’s why we also decided to create….
2) 2) A folding wallet resource listing resources for support for older women and providing a link to the legal handbook. There will be three versions of the wallet resource: a version listing only services that are available in languages other than English, translated into ten languages other than English; a version in English listing services with a focus on specialized supports for Indigenous women; and a general English version.
3) 3) A training for frontline service providers who support older women or advocate on their behalf. We recognize that for many older adults, reading a print-based resource will not be an accessible way to learn about rights, but talking to a trusted support person may be a great way to get information and explore options for navigating legal challenges. That’s one of the main reasons we are offering this webinar to you - in the hopes of ultimately getting important legal information to older women. We have also delivered an in-person version of this training in Vancouver, Surrey, Burnaby, Kelowna, and Nelson. We can explore the possibility of offering it in your community if there are funds available for travel.
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Older Women’s Legal Education Project
Transcript:
If you haven’t already done so, we hope you will download the PDF version of Roads to Safety and spread the word in your community and professional network at http://www.westcoastleaf.org/roads/
In the last session of the webinar, we talked a bit about the Older Women’s Dialogue Project. This collaboration between West Coast LEAF and the Canadian Centre for Elder Law grew out of a concern that older women were largely invisible in mainstream law and policy reform work. The project has brought us into conversation with 450 women in 9 different languages. We wanted to hear directly from older women about the law and policy issues that have the greatest impact on their safety and rights. We published a report in 2013 that documented the findings and made law and policy recommendations based on the first phase of the project, and the report on the second phase of the project is coming out this fall. We also engaged four groups of women in creating their own law reform projects.
What we learned from talking to older women through the Older Women’s Dialogue Project inspired us to launch the Older Women’s Legal Education Project.
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MORE THEMES from OWDP
POVERTY AND INCOME INSECURITY
Some contributing factors:
• Immigration
• Disabilities
• Limited or no pension access
• Impacts of residential school and foster care
• Caregiving responsibilities
• Discrimination
Transcript:
As we explained last time, one of the biggest issues identified by the participants in the Older Women’s Dialogue Project is the prevalence of violence in their lives and the barriers to their safety. We gave an overview of those issues last session before introducing some legal information with particular relevance to older women’s physical safety. Today we’ll look at two other key themes from the OWDP:
older women’s experiences of income insecurity and lack of access to information, especially legal information. Of course, both of these also impact women’s physical safety and ability to flee abuse – the issues aren’t separate.
Contrary to the stereotype that older adults are financially well-off, a study by the Social Planning and Research Council of BC and the United Way shows that of women aged 65+ in the lower mainland, 60% have an annual income under $25,000 and 8% under $10,000. Some of the women we spoke to as part of the OWDP had no income at all. Older women under 65 faced particular challenges because of their inability to access Old Age Security or many community programs and reduced fees for services.
Here are just a few of the factors women identified as contributing to financial insecurity:
Immigration can affect access to pension benefits and publicly funded services and the ability to find paid work. Women can’t access OAS until they have been in Canada for 10 years. Women who come to Canada under the family sponsorship program generally have to wait for years before the sponsorship period is over before accessing publicly funded benefits or subsidized programs like welfare, the Guaranteed Income Supplement, or BC Housing. This circumstance can increase financial dependency and vulnerability to abuse for these women.
Disabilities and health issues can be factor due to barriers in accessing disability benefits, employment discrimination, pressure to retire early, or inability to work or to work full-time depending on the nature of the disability.
Pensions can be difficult or impossible to access for many women. In 1988, First Nations, Metis and Inuit people earning income on reserves became entitled to contribute to the CPP and begin to accrue benefits from it for the first time. Older First Nations women from one of the on-reserve consultations highlighted the financial impact of this policy, whereby a woman who is 65 today, would have been 38 before she is able to contribute to CPP. The means that older First Nations women who were living and working on reserve had on average twenty fewer years to accumulate pensionable income. For some immigrant women, a work history split between countries can also limit pension entitlement, depending on the agreement between particular countries.
Gendered caregiving responsibilities throughout the lifespan can limit women’s participation in the workforce and negatively impact their financial situation (including their pension entitlement). Many Indigenous Elder women who participated in the OWDP particularly highlighted the high costs for grandmothers raising grandchildren and the lack of financial and other supports available to them. Many immigrant women indicated that they came to Canada under the family sponsorship program specifically to provide care for the grandchildren while their adult children worked outside the home. Many women in this situation expected to receive financial support and inclusion in the family, but this expectation was not always fulfilled.
Many older women experience employment discrimination based on factors such as gender, age, race, ability, sexual orientation, gender expression or identity, language, or any of these in combination. Queer and lesbian older women in the OWDP particularly emphasized the impacts of discrimination on their financial security. Consider that a lesbian woman who is 65 years old now spent 45 years of her life without legal protection from workplace discrimination based on sexual orientation. Over the course of a woman’s employment history, the impacts of systemic discrimination could significantly affect her
financial situation. As women age it can become even harder to maintain a decent income. It was common for women to describe having their work hours cut and given to younger workers. Many older women felt their breadth of experience and skills were not valued by employers. In unionized environments, some women also shared stories of managers who would try to manipulate a woman into agreeing to work fewer hours to avoid paying her medical benefits.
Some older women, especially those from Indigenous and immigrant communities, also reported discrimination by public institutions that might need to turn to for services or support. For example, one woman said, “Every time I come to the welfare office I am made to feel like I am a criminal, especially when they hear my accent.” Another woman added, “The income assistance people ask you to wait outside in the name of safety and security, but end up treating people with a lot of disrespect.”
Because of discrimination, women might be judged as incapable of managing their own financial affairs. Some older women may not have a lot of experience or confidence handling financial matters is this is something that their male partner has done throughout their relationship due to traditional gender norms. This too can create barriers to accessing financial resources that might rightfully be theirs.
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“The stigma associated with fleeing abuse is huge. Your credit rating is terrible, you have no clean clothes and people look at you differently when you have to tell them why you left. The stigma follows you when you go to rent your next place—loss of friends, credibility, loss of everything.”
- Older Women’s Dialogue Project Participant
Transcript:
And as this participant in the OWDP pointed out, many older women also face discrimination for being abuse survivors, which can also have financial consequences, for example consequences for a woman’s credit rating. This is a source of discrimination that is seldom discussed even many in spaces where there is a strong awareness of different types of discrimination.
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SOME THEMES from OWDP
LACK OF ACCESS TO INFORMATION
Some challenges:
• Language barriers
• Lack of accessibility of information
• Service providers not communicating with older women directly because of ageism
• Lack of access to legal information
Transcript:
Language barriers: Some women indicated that there is a lack of plain language written information in their native language, while other women are not literate in any language and need to get information from advocates who speak their language. Much of the legal information that older women need to deal with, including information about pensions, is particularly complicated and technical.
Inaccessibility: Lack of access to sign language interpretation was reported as a significant access issue for older women from the deaf community, especially in terms of health care. Many also observed that information from government is not accessible enough via TTY and that TTY service is slow and inadequate. Print-based resources can also create accessibility barriers for women with low vision or who are blind and women with dementia or intellectual disabilities. Furthermore, although plain language information is available online about options for women in BC who are fleeing violence in their homes, the internet is not accessible to many older women. Compared to younger women, they are less likely to have access to a computer or feel confident in using one.
Many older women also told us that due to discriminatory attitudes, service providers (for example, at financial institutions or in healthcare) would address younger family members accompanying them rather than informing older women themselves of the information relevant to their situation. One woman said, “They equate incapacity with ageing.” This ageist assumption about older women’s capacity to understand information and make their own decisions could be compounded by other forms of discrimination, for example based on a woman’s accent or disability.
Lack of access to legal information: Older women continue to encounter barriers to accessing legal information and help. Women at every group in the OWDP identified cost as the largest barrier. Second, women often did not know how to access legal services. For women who get a free legal advice appointment, the thirty minutes of free legal advice is rarely adequate. One recurring issue identified was lack of access to funding for interpretation at appointments with lawyers. First Nations women also experienced unique barriers accessing legal assistance. Legal issues on reserve are complex because either provincial or federal jurisdiction may apply depending on the issue. For lawyers, this is a complex area of law and there are not many lawyers with this practice experience in the Vancouver Lower Mainland. With constrained options, women are relying on Native Court Workers and legal advocates, and although helpful, they cannot replace legal council and representation.
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“It’s not just that older woman are treated poorly, but if you’re older, a woman and not white you’re treated worse. There are different levels and kinds of discrimination that stack up one on another. When you’re like me and poor, not-white, older and a woman—well then you’re in trouble.”
- Older Women’s Dialogue Project Participant
Transcript:
To wrap up our discussion of the Older Women’s Dialogue Project from both May 24 th and today, one point that was emphasized by many participants and that is important to bear in mind is that older women’s experiences – whether relating to safety, financial security, access to information, access to justice, or anything else – are shaped not just by gender or age, but by every aspect of identity in combination. Many older women face multiple and overlapping forms of inequality that we as service providers need to consider in order to meet their needs and help them access a system that in many ways has not been built to include them.
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Intersectionality and ‘elder abuse’
Transcript:
Many other women who participated in the Older Women’s Dialogue Project also made it clear that their experiences and struggles aren’t shaped by age alone, or by gender alone. Discrimination can be layered; inequalities based on age and gender are experienced together along with many other inequalities, for example based on citizenship status, language, ability or disability, Indigenous identity, sexual orientation, and many more. These combine to impact women’s experiences seeking safety and navigating the legal system.
“Intersectionality” is a term that is often credited to the African-American legal scholar Kimberlé Crenshaw and was initially used to draw attention to the combined impacts of racism and sexism in black women’s experiences of discrimination, for example, in employment. Basically, intersectionality is the understanding that we don’t live our gender separately from other aspects of our identity, and that different experiences of inequality can combine to create the very particular injustices, challenges and needs that people face in their daily lives. Of course, Crenshaw isn’t the only person to have made this idea – as we saw, some of the women who participated in OWDP made very similar observations.
You will notice that ‘elder abuse’ is in quotation marks on this slide. This is not because we doubt the reality of violence against older adults – far from it! – but because each older adult also has other identities that are relevant to their experience of abuse. An older woman is a woman in addition to an older adult, and her experience of abuse may well fit patterns of intimate partner violence that are usually described by the term violence against women. She might also be an immigrant to Canada, or a lesbian, or a person with a disability, or an upper-middle-class person, or several of these. All of these factors would affect her experience trying to escape violence in her home. So our intention is not simply to replace an elder abuse lens with a violence against women lens but to remember the many factors that can shape older women’s experiences of violence and to provide legal information targeted to these experiences.
Q: What do you notice is missing from this graphic? The labels say “income,” “gender,” “sexual orientation,” “language,” “ability,” “cultural background,” “level of education,” “job status,” and “marital status.” Of course, AGE is missing! This just goes to show that feminism does not always attend to the issues facing older women. We are just as interested in bringing an aging lens to conversations about violence against women as we are in bringing a gendered lens to conversations about elder abuse.
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Intersectionality and ‘elder abuse’
If I leave my sponsor, will I be deported? What will happen to my grandkids? I’m the one who keeps them safe and cares for them.
I don’t want to report my husband’s violence. I don’t trust the police to treat an Aboriginal woman with respect. Too many of our men are behind bars.
My kids always assumed I wasn’t good with money. Now that I have partial facial paralysis because of my stroke, they want me to give them full control. They think I’m not intelligent because my speech is slower and less clear than before.
Transcript:
These are not real quotations from women we spoke to, but examples of situations women can find themselves in that are greatly shaped by inequalities gender, age, and other factors all at the same time. These are the types of scenarios that are presented in Roads to Safety.
We chose the legal topics in our handbook based on the priorities that diverse older women and service providers shared with us. We tried to keep in mind that (for example) immigration law isn’t separate from family law or poverty law in women’s real lives, and that women encounter a variety of legal challenges simultaneously and ideally shouldn’t have to turn to an entirely new resource to get basic legal information about different aspects of their situation.
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Overview of some legal issues
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Substitute decision-makers
Know whether there is a SDM and what they do and don’t have the authority to do!
• Power of Attorney (POA) – can cover legal & financial decisions only
• Representation Agreement (RA) – can cover health & personal care decisions, sometimes routine financial matters
• Temporary health care decision-maker
• Committee – person appointed to manage the affairs of somebody who is no longer capable of looking after them
Transcript:
One of the reasons why we cover substitute decision-makers in this presentation is because often abuse of older women will involve misuse of authority under a substitute decision-making instrument.
There are 4 main different kinds of substitute decision-maker in BC.
For representation agreements, the difference between a representation agreement created under section 7 versus section 9 is very important. We do not go thru through differences in this presentation but if you are assisting a woman with a representation agreement please make sure you know what kind she has.
It is important for both service providers and older women to know that having a substitute decision-maker in place does not necessarily mean that that person has the legal ability to make ALL decisions on behalf of a woman. Not everyone is aware of the details of the law in this area, even staff at major institutions like banks or the healthcare system can be confused about the law. For example, we have heard about situations where somebody with power of attorney is wrongly making healthcare decisions and the doctor is going along with it.
Abuse can happen when substitute decision-makers misuse their authority or overstep it. For many women, it can be an empowering step to take a look at the legal document that creates the substitute decision-making relationship and identify exactly what powers it does and doesn’t give.
Important: These relationships relate to what happens when the woman is living and have nothing to do with wills, which cover what happens after her death.
A substitute decision-maker can be:
• a person (often a spouse or an adult child or professional advisor),
• a corporate trustee (such as a trust company or authorized agency such as the Bloom Group), or
• the Public Guardian and Trustee
A family member takes on this responsibility for free. Lawyers, trustees or the PGT would generally do this work only for a fee.
What powers does a substitute decision-maker have?
The powers always depend on what it says in the legal document that created the decision-making relationship, and relevant law. The document creating the relationship could be:
• An agreement
• A court order
• A certificate of incapability
SDMs can be powerful. Here are some examples of decisions or powers a substitute decision-maker can have:
• Receiving, depositing and spending a pension cheque
• Consenting to some forms of health care treatment, including surgery
• Deciding (section 9 representation agreements or committee of the person only):
• Where a person can live, including decisions about entering into a care facility
• Whether a person is allowed to work or enroll in school
• Whether a person can have contact with certain people, including someone who may be either abusive or supportive
• Whether a person can have a driver’s license
• Whether physical or chemical restraints can be used on a person in a care facility
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Substitute decision-makers
Health care decisions:
• Representative
• Committee of the person
• Temporary Substitute Decision-Maker (TSDM) for healthcare selected by a healthcare provider to give consent for treatment if the woman is not able to make this specific medical decision
Transcript:
A person can appoint a representative to:
• Make health care decisions for her
• Help her make health care decisions, or
• Make health care decisions only in the event that she becomes too ill or disabled to make these decisions on her own. Just in case situation, a form of advance planning
A committee of the person is appointed by a court process.
Decision-making authority would only go to TSDM only if there is no representative or committee of person already in place.
The Health Care Consent and Consent to Treatment Act has a descending order list of people who would be appointed as TSDM, largely family.
The PGT can step into decision-making for healthcare if no one else is available to do this.
There are criteria in the law about who can and cannot become a TSDM, e.g. a person CANNOT become a TSDM who has not talked to the individual in the last year, who has committed a crime against them, and so forth.
In addition, in emergencies, if a woman is unconscious or impaired by drugs or alcohol, a health provider may provide health care to preserve life, prevent serious harm, or treat severe pain —without contacting anyone.
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Substitute decision-makers
All SDMs must:
• Consult you before making a decision (where possible)
• Follow your known instructions or wishes
• Act in your best interests
Transcript:
We covered this last time, but it bears repeating. All substitute decision-makers have legal duties, and women have legal rights even if another person has legal authority to make certain decisions on their behalf.
Regardless of what kind of SDM a woman has, she has the right to:
• Tell her SDM her preferences or wishes. Her SDM is required by law to find out her preferences or wishes and consider them.
• Follow known instructions or wishes
• Have decisions made in her best interests. A SDM cannot use the money to do things they want. Not a form of early inheritance.
• These rights are stated in legislation
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SDMs and abuse:
• Using a SDM to steal a woman’s money
• Pressuring or forcing a woman into signing a RA or POA
• Neglect of a woman’s healthcare by a guardian or caregiver
• Failure to fulfill any other legal responsibilities
Misuse of SDM authority can be a crime.
Transcript:
As mentioned earlier, abuse of an older women may linked to abuse of substitute decision-making authority.
Police who are not familiar with power of attorney abuse may not know the law in the area. They may say “this is a family issue.” They may need to be reminded that theft through a power of attorney is a specific crime under Canadian law.
For more information on the criminal law and elder abuse you can look at the Practical Guide to Elder Abuse and Neglect Law in Canada, found on the CCEL website. This document lists many of the sections of the criminal code that may apply in a context of abuse of older people.
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SDMs and abuse
Revoking (cancelling) POAs and RAs
• Inform the attorney or representative in writing that the POA or RA is revoked
• Notify others (e.g. family, bank, Revenue Canada, Service Canada) & ask for copies to be returned or destroyed
• Inform Nidus (if POA or RA registered)
• Take other steps outlined in POA or RA
Transcript:
It’s important for women to know that as long as they have the legal capacity to make this decision, they can cancel (revoke) a POA or RA. The legal requirement for capacity might be lower for revoking than for
creating a new POA or RA, so sometimes women will be able to get rid of a POA or RA but not create a new one.
To inform the attorney or representative, use registered mail or deliver written notice in person.
Inform anybody who might have dealings with the attorney or representative. If the POA deals with land, this will include the Land Title Office.
Nidus Personal Planning Resource Centre and Registry (contact info is provided in the resources list) is a great source of information on powers of attorney and representation agreements. We encourage you to look at this website.
Take any other steps outlined in the POA or RA document itself as requirements for revoking it.
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Abuse and neglect intervention
What if an older woman is experiencing abuse or neglect but is not able to take action to protect herself?
Intervention options:
• Health Authorities
• Public Guardian and Trustee (PGT)
Transcript:
Last time we went into some detail about the legal framework around adult guardianship in BC and the legal obligation of the health authorities as designated agencies to respond to reports of abuse or neglect of adults who can’t get help for themselves. We went over the Decision Tree handout (draw participants’ attention to the handout again). We also briefly mentioned that one of the roles of the PGT is to investigate abuse of older adults that is mainly financial or legal in nature.
Today we’re going to look more in depth at the PGT and its powers in cases where an older woman is experiencing financial abuse.
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Slide Text: Public Guardian & Trustee May:
• Interview a woman, her spouse, family, friends, staff at care facility or health authority
• Obtain reports about her health, personal, legal or financial affairs
• Gather information from the bank, doctor, landlord, lawyer
Transcript:
Important criteria for PGT to do an investigation:
1) Reason to believe no mental capacity —no ability to make her own decisions, possibly due to disease or illness
2) Assets at risk (understand that a loss of a “small” amount of money is a huge deal if you don’t have much money)
3) No one else who can help
PGT or health authority may:
• Interview the adult’s spouse, family members, friends or anyone else who may assist in obtaining information required
• Obtain a report from a health care provider who has examined the adult
• Obtain a report from any agency that provides health or social services to the adult
• Obtain a report from any person that manages the adult’s financial affairs
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Public Guardian & Trustee May:
• Ask a SDM to provide a financial accounting
• Obtain reports about the financial situation from the woman’s bank, credit union or investment advisor
• Freeze assets temporarily
Transcript:
If the PGT is concerned that the substitute decision-maker is not acting correctly, they can take certain steps.
PGT may:
• Ask a substitute decision maker for a report demonstrating how the adult’s assets, income and expenses are being managed;
• Obtain reports about the adult’s financial situation including statements and other records from the adult’s bank, credit union or investment advisor;
• Require the trustee, attorney, representative or guardian to produce any accounts, securities or other records; and
• Require a person, institution or other body having records relating to the financial affairs, personal care or health care decisions of the adult to produce any records that are necessary for the investigation, including any report or information relevant to the incapability of the adult.
• They have the power to temporarily freeze assets.
If there is nobody who can take on financial and legal decision-making, the PGT can do this itself for a fee.
Sometimes if the woman’s only income is GIS/OAS/disability, PGT will act as pension trustee in places not served by the Bloom Group (ie. outside of the Lower Mainland) – but this does not give all of the powers that a committeeship would (such as filing back taxes, applying for fair PharmaCare).
Up until the moment when PGT becomes pension trustee or committee of estate, there is no fee – fees start when pension trustee or committeeship starts. The PGT does not charge to investigate reports of abuse or neglect.
Committeeship and pension trusteeship can involve a huge amount of power. Decisions about reasonable expenses can be very different for women with different incomes. For example, a woman’s wish for a wig costing several hundred dollars may not be deemed reasonable if she is living on $900 a month but may be granted if she has a higher income or some wealth. There are other factors of discrimination that can come into play as well; for example, will a transgender woman wanting a wig face a different set of judgements by a substitute decision-maker than a cisgender woman with alopecia?
Legal issues surrounding the management of money are fundamental to women’s safety. Next we will look at some basics of pensions, which can be essential to women starting a new life after leaving an abusive situation, especially women who may not have many assets of their own.
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Public Pension basics
• Old Age Security (OAS) – available to most people 65+ who meet Canadian legal status & residence requirements – paid work history has no impact
• Guaranteed Income Supplement (GIS) – for low-income OAS recipients living in Canada
• Canada Pension Plan (CPP) – based on paid work history and employer contributions; standard to start at age 65 but can be as early as 60 (starting early reduces monthly benefit)
Transcript:
As most of you are aware, women will often be reluctant to leave an abusive situation if they are thinking: how will I support myself? Where will I live? Explaining rights to OAS and CPP is crucial. For a younger older women (under 65), or for temporary situations while awaiting pension income, welfare remains a last resort.
Additional points:
OAS:
-As of 2013, there is the option to postpone getting OAS for up to 5 years (age 70) for an increased monthly benefit.
-It doesn’t matter if a woman is still working or if she has never worked for pay – OAS is not connected to paid work history or working status.
-Residence requirements are strict and a huge barrier to many women: a woman needs to have lived in Canada for at least 10 years (if she is currently living in Canada) or for at least 20 years (if she is currently living outside of Canada) – but even if you haven’t, check the list of countries that have a social security agreement with Canada as there is a chance a woman may still qualify. She needs to have lived in Canada a full 40 years as an adult to be entitled to full OAS.
- If a woman is already receiving OAS and becomes single, she needs to notify Service Canada as her pension amount entitlement will likely increase slightly.
CPP:
-CPP also has disability benefits for people under 65 with a prolonged a severe disability and possibility of an additional benefit if a woman is receiving the disability benefits and has custody of a grandchild or other child.
-At age 65, CPP disability benefits end and switch over to retirement benefits.
-CPP also has survivor benefits based on spousal entitlement, even if separated or divorced before the spouse died and/or remarried.
-A major source of inequality for many Indigenous elder women is that work on reserve only started to count towards CPP in 1988. Therefore, many of these women have few or no CPP benefits from their careers on reserve. And some women are not aware that their work done on reserve after 1988 is CPP-eligible.
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Public Pension basics
CPP options relevant to many older women
• Child-rearing provision – if a woman has years with no / low-income due to being primary caregiver for a child under 7, she can apply to leave these years out of CPP calculation
• Credit splitting – CPP contributions made by a woman and her ex-spouse may be equally split after divorce or separation
Transcript:
These are some options under CPP that may be beneficial for older women who have a history of unpaid childcare in the home and/or who have earned less than their ex-spouse.
Credit splitting is her legal right. The ex-spouse does not have to consent.
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Pension Division
After divorce/separation
• Different pension types have different rules: public (e.g. CPP), private (through your employer), investments (e.g. RRSPs)
• Many private pensions are considered family property & could be possible to divide after separation
• RRSPs and RRIFs subject to family property rule
Transcript:
The pension of an ex-spouse can be a valuable asset, but the law surrounding pension division is very complicated. We’ve outlined some basics in Roads to Safety, but we encourage women to get legal help if at all possible.
Family property is the property that married or common-law spouses acquire during their relationship, with a few exclusions (for example, inheritances and certain types of insurance proceeds). In general, it is assumed that separating spouses are each entitled to an equal share of family property and family debt, unless a 50/50 division would be significantly unfair (to give just one example, if one spouse intentionally destroyed a lot of family property or did something to reduce its value, a judge might rule that a 50/50 division would be unfair).
We just discussed the applicable law vis-à-vis OAS and CPP. For CPP, a woman can apply for credit splitting, as we just mentioned. GIS and OAS cannot be divided. But if a woman informs Service Canada that she is now separated, her GIS benefits may be recalculated and go up.
Private pension plans are often but not always family property, and it can be hard to figure out whether this is the case. Usually pensions from work performed in BC will fall under BC law and be considered family property, but to be sure, legal advice is recommended. RRSPs (Registered Retirement Savings Plans) and RRIFs (Registered Retirement Income Funds) are included in family property.
To find out an ex-spouse’s pension information, a woman can fill out a form that can be obtained on the LSS website called “Claim and Request for Information & Notice” and send it to the pension plan administrator. No court order is needed for this.
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Resources
BC Centre for Elder Advocacy & Support
Info, referrals, resources & advocacy for adults 55+
• Victim services
• Elder law clinic
• Seniors Abuse & Information Line (SAIL): 1-866-437-1940
Elder Abuse Police Units
Specialized investigation & victim support; liaison with PGT and Designated Agencies
• Vancouver
• New Westminster
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BCCEAS elder law clinic: legal advice, advocacy and representation to people 55+ who are not able to access legal help due to low income or other barriers, on legal issues involving housing, debt, access to government benefits, financial exploitation, capacity/guardianship, abuse/neglect and discrimination.
SAIL: 7 days a week except holidays, 8 am to 8 pm; language interpretation available Monday to Friday, 9 am to 4 pm.
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Community Response Networks
Diverse groups of concerned community members who come together to create a coordinated community response to adult abuse, neglect and self-neglect in particular communities
Health Authorities & Community Living BC (Designated Agencies)
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Public Guardian & Trustee
Services to adults who may need help managing their affairs
• Receiving & investigating reports of abuse or neglect that is mainly financial and/or legal
• Healthcare decision-making
• Financial and legal decision-making
• Monitoring substitute decision-makers who have been appointed under the Patients Property Act (Private Committees)
Transcript:
PGT healthcare decisions: When the patient is incapable, in the absence of an already existing substitute decision maker or an Advance Directive relevant to the health care decision to be made, the law requires the health care provider to choose a person to provide consent to treatment from a list of qualified people that meet specific criteria. The list includes family members and close friends. When an eligible person is not available, or there is a dispute in choosing between equally ranked decisions makers, the Public Guardian and Trustee (PGT) is called upon to authorize a suitable decision maker or to make substitute treatment decisions.
