Enduring Powers of Attorney and Financial Abuse of Older Persons:Are Existing Safeguards Sufficient?

Abstract

Research has shown that older persons, particularly those with diminished capacity, are vulnerable to financial abuse by enduring power of attorney, which is otherwise an effective estate planning tool. Current legislation in Nova Scotia is not adequate to protect older persons from such financial abuse, which can be extremely devastating for them not only financially but physically and emotionally. Improvements to legislation are one part of the multi-dimensional solution to the problem. Educational initiatives for donors, attorneys and others is critical. Non-adversarial remedial measures to abuse, such as restorative approaches and elder mediation, must be fostered, as they provide for reconciliation, not retribution. An effective enforcement body, such as a remodeled Public Trustee’s Office, with a Registry for enduring powers of attorney and a mandate to investigate and take action to remedy financial abuse by attorneys, is essential. While all measures involve expending more public funds, the public policy benefits would certainly justify the costs.