Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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In 2007, the British Columbia legislature passed the “Adult Guardianship and Planning Statutes Amendment Act”, parts of which came into force in September of 2011. One of the key points to this legislation, finding interest in the estate world recently, is the new mandatory mediation requirement for guardianship applications.  Several of the other considerations addressed in this new legislation are considered here.

The Canadian Centre for Elder Law Studies, a division of the British Columbia Law institute, has recently prepared a report on this very issue, titled “Elder and Guardianship Mediation”.   At the risk of stating the obvious, our demographic is quickly aging, and issues surrounding anything dealing with the elder population are appropriately en vogue.   The substantial report deals with a variety of important issues in respect of the type of training a mediator might require in this particular field, ethical principles for consideration for all involved, as well as attending to an explanation of key concepts and definitions related to this field.

Although this report was prepared for British Columbia, with a detailed analysis of their legislation, certainly the parallels to Ontario are evident and likely to be found very persuasive by the Ontario Courts. Under Rule 75.01 of the Ontario Rules of Civil Procedure, mandatory mediation applies to the Substitute Decisions Act. As guardianship in Ontario is governed by the Substitute Decisions Act, it may be that the information and considerations addressed in the Report will be helpful both in practice to Ontario counsel, as well as to the judiciary when considering such matters.

Get an early start on your CPD Hours and join us for our Breakfast Series this Thursday, January 19, 2012 at 8:30 am at the Ontario Bar Association Conference Centre located at 200-20 Toronto Street, Toronto Ontario. Please see here for a link to our registration form. I hope to see you there!

Thanks for Reading,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz. 

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I recently received a copy of the New York State Bar Association Journal (“Journal”) and was pleased to discover that the summer issue was dedicated to Elder law.   Unfortunately, the entire Journal is only available online to members of the bar association[1]. Still, I’d like to address two points made throughout the Journal, as it seems that the issues we faces as our most populous generation ages are consistent across the border.  

One of the most compelling articles that I read, spoke of the issues parents face when they have adult children who are themselves in need of lifelong support and supervision.  At a recent Hull & Hull LLP breakfast series, a presentation was given on guardianship and the process of being appointed in such a role. If you have undertaken the role of a guardian for your child, or if you have been helping an adult child who has capacity, but who requires extra assistance, such a role, and who might fill it, ought to be considered when planning your own Estate. 

Another article of interest related to ‘snow-birds’, those who enjoy the winters in the south and the summers up north, a phenomenon also prevalent in Ontario. In such a situation, property ownership and disposition can be particularly challenging. Understanding the nuances and requirements of each jurisdiction in which you own property, and ensuring that your estate plan, including any power of attorney documents you have, cover such assets, is a worthwhile undertaking. 

Take the time to consider your estate plan, and how your estate will address any specific issues created. The short term time expended is minimal, but the long term gain can be substantial.

Until Tomorrow,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz. 

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A successful mediation requires all of the parties to commit to the process.  Earlier this week, I blogged on Elder Mediation which has evolved into a distinct practice area.  But, practically speaking, how do we enhance the prospects for success of an Elder Mediation where the personal care of a vulnerable yet capable single parent is in dispute?

More often than not, when there is a dispute between siblings as to the care of a single parent suffering from early stage dementia, the parent is residing with one of the children.  In the lead up to the mediation, the "custodial" child has ample opportunity, motivation, and temptation to spin his or her argument to the parent. While this may be inadvertent in some cases, there are clearly instances where there likely is conscious scheming to repeatedly remind the parent of supposed grievances that the parent ought to harbour against the "non-custodial" sibling.  Even if this kind of brainwashing (for lack of a better word) does not occur, the non-custodial sibling will harbour suspicions.  The mediator is then challenged to establish credibility in the face of an atmosphere of distrust. 

Mediators and counsel alike are increasingly challenged by disputes where capacity is not technically in dispute yet there is nonetheless consensus of all concerned that an elderly parent is vulnerable and in need of assistance.  The first challenge is getting the parent to attend the mediation with counsel.  This is a significant hurdle in that it requires the surrendering of a degree of control over internal family disputes (historically the parent's responsibility) to a complete stranger.  Assuming the parent attends the mediation, it may be critical that the parent is separately caucused from the children to provide every opportunity for a successful mediation.    Not only does such separation alleviate any lack of trust in the process by the non-custodial sibling but it affords the mediator the opportunity to meaningfully engage the parent in a process that can (in fact) be very intimidating.

Have a great weekend!

David Morgan Smith - Click here for more information on David Smith.

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The Law Commission of Ontario, the Canadian Centre for Elder Law and the Advocacy Centre for the Elderly hosted the 5th Canadian Conference on Elder Law on October 29 – 30, 2010. www.acelaw.ca

The stated goal of this year’s conference, which was held in Toronto, was to “promote contribution and access to a knowledge base regarding legal issues affecting older adults, with a view to reducing vulnerability, social isolation, and abuse” with the overarching theme of the conference being to develop an anti-ageist approach to the law.

The speakers touched on a wide range of topics, including aging, access to justice, the role of law schools in responding to Canada’s aging demographic, the challenges and opportunities of a shift to a rights-based approach to elder law and approaches to law reform that include older adults.

In light of the stated goal, several speakers opined that there should be direct consultation with stakeholders. Senior’s Activist, Bea Levis, for example, stressed that laws, policies and programs must be informed by the lived experiences of older adults if we wish them to be both fair and effective. I couldn’t agree more.

The Canadian Conference on Elder Law is one of the many ways that individuals from diverse backgrounds and professions are able to increase awareness regarding the issues facing older adults and develop strategies to advance the interests of this often vulnerable population.

If you are concerned about elder rights, there are several things you can do, one being to sign up for next year’s conference. I hope to see you there.

Thanks for reading!
 

Kathryn Pilkington - Click here for more information on Kathryn Pilkington.

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A conversation about driving with dementia exploded in the press in recent weeks. Everyone is weighing in on this debate, with potential stakes running obviously high. Certainly the decision to take away a patient’s licence could never be undertaken lightly, so how can a physician accurately determine driving risks associated with dementia?

A patient’s score on the Mini-Mental Status Examination (MMSE) score, when considered on its own, is a surprisingly poor predictor of a driver’s ability to drive safely. In fact, studies have shown that as many as 76% of patients with mild dementia are still able to pass an on-road driving test. Last month, in a strong effort to refine the entire process of assessing driving risk associated with dementia, the American Academy of Neurology issued updated guidelines for physicians. These updated practice parameters take into account the following characteristics that have proven useful for identifying patients at increased risk for unsafe driving:

• Clinical Dementia Rating Scale (CDR);
• A caregiver’s rating of a patient’s driving ability as ‘marginal’ or ‘unsafe’;
• The patient’s driving history, including accidents and citations;
• Self-reported ‘situational avoidance’ [Studies have shown that self-restricted driving, perhaps by avoidance of highway driving or night driving, or driving in inclement weather, or simply reduced overall mileage, is an accurate indicator of a driver at increased risk];
• An MMSE score of 24 or less; and
• Aggressive or impulsive personality characteristics.

This multi-faceted risk assessment brings the Americans more in line with the current Canadian approach, as outlined in the Canadian Medical Association’s document: Determining Medical Fitness to Operate Motor Vehicles CMA Driver’s Guide which takes this stance: "The driving ability of people with mild dementia should be tested on an individual basis. Studies have shown that a significant percentage of those in the early stages of dementia are able to operate a motor vehicle safely."

Jennifer Hartman, guest blogger

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In her new book, They're Your Parents, Too!: How Siblings Can Survive Their Parents' Aging Without Driving Each Other Crazy, journalist Francine Russo writes about a difficult stage of life: the “twilight transition” when boomer-aged siblings reunite to care for aging parents. This period is laden with new challenges – dividing assets, dementia, caregiving issues - and has the potential to inflame old sibling rivalries as adult siblings deal with the end of their first family and take over their parents’ place as the decision-making generation. As noted by Ms. Russo in a recent interview with The Globe and Mail: “There’s a huge re-emergence of sibling rivalry over parents because when we see that our parents’ time is limited, all the unmet needs we’ve had resurface: to be loved, approved of, forgiven….”

In her book, Ms. Russo interviewed siblings, gerontologists, family therapists, elder-care attorneys, financial planners, and health workers to offer practical advice on such topics as:

-          the negotiation of caregiving issues and dealing with unequal contributions or power struggles;

-          the making of major medical and financial decisions, when parents cannot;

-          how to cope with unresolved childhood rivalries and hurts; and

-          tips for avoiding conflict.

Click here to read Ms. Russo’s interview in Monday’s edition of The Globe and Mail.

Bianca La Neve

Bianca V. La Neve - Click here for more information on Bianca La Neve.

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For those of you with one eye on the next page of the calendar, Hull & Hull LLP will be posting our third series of medical/health blogs starting on Monday January 4th, 2010. The series will run every Monday thereafter in the month of January, for a total of four blogs. The following subjects will be featured:

• Pseudodementia
• Lewy Body Dementia
• Korsakoff's Syndrome
• Huntington's Disease

We hope this series proves both useful and informative. Please feel free to contact us at nonley@hullandhull.com with your feedback.
 

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BBC News recently commented on a study published in the Lancet journal that shows more than half the babies now born in the UK and other wealthy nations will live to be 100 years old.  The data from the study indicates that these extra years would be spent with less serious disabilities for the elderly.

The researchers, from the Danish Aging Research Center, refer to “four ages of man”-child, adult, young old age and old old age. Surprisingly, there was little evidence that those who belonged in the old old age group were unhealthier that those in the young old age group likely because the frailest elderly died first leaving the more robust to survive past the age of 85. Danish and American studies show that about 30%-40% of those falling into the old old group live independently.

Of course, such a development requires countries to reform their health-care services, employment practices, and care services. In the U.K., with an election looming, the Tory party has promised a Home Protection Plan that would allow people at the age of 65 to make a one time payment plan of £8,000 pounds in exchange for free full-time residential care in later life. This proposed policy addresses the issue of the elderly having to sell their houses in exchange for funding care giving services.

A significant longer life expectancy requires careful retirement and estate planning. If this trend towards increased life expectancy continues, long standing assumptions will have to be altered.

Thanks for reading,

Diane Vieira

Diane Vieira - Click here for more inforamtion on Diane Vieira.

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The growth in Canada’s aging population has led to increased awareness of the special needs of seniors and the impact of the law on them. Our blogs have often dealt with issues that particularly affect the elderly, such as power of attorney abuse. In a previous blog, I noted the rise of a new practice specialty, elder law, to deal with the multi-faceted legal needs of the elderly. 

The Advocacy Centre for the Elderly (ACE) is a longstanding community legal clinic that has been at the forefront of elder law since 1984. ACE specializes in providing legal services to low income seniors in Ontario and promoting access to justice for the elderly. Through its work, ACE has developed expertise in issues affecting older persons, such as elder abuse and exploitation, mental capacity and consent, patients’ rights in hospitals and other institutions, and substitute decision making. 

ACE is currently working with the Law Commission of Ontario (LCO) to research the best ways to enforce the rights of older adults residing in institutional settings, such as hospitals, long-term care homes and retirement homes. Older adults, including residents in institutional settings, are too often denied access to justice due to lack of awareness of legal rights, discrimination based on age, and financial and physical obstacles in trying to access the legal system. ACE’s goal is to develop an ‘access to justice model’ that will promote the autonomy and dignity of older adults residing in institutions, and ensure that their complaints are heard and successfully resolved. ACE’s work is part of a broader multi-year project by the LCO to develop a new framework to analyze and understand the impact of law on older persons. 

For more information about ACE, see their website at www.advocacycentreelderly.org. More information about the LCO’s project on older adults can be found on their website at www.lco-cdo.org.

Have a great day!

Bianca La Neve

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Listen to Social Media and the Canadian Conference on Elder Law

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the idea of knowing what is going on around us in social media. They mention the Canadian Conference on Elder Law put on by the Canadian Bar Association conference in Kingston, Ontario on June 9, 2009. One of the first topics at the conference will be on assessing the capacity assessor. Ian and Suzana discuss assessing the assessor and the pros, cons and what should be expected. They talk about what they see in their practice as important elements of a good assessment and where they might see some problems.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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My mother used to volunteer with Goodwill, where one of the projects was a contents sale. A team from Goodwill would organize a home’s contents for sale – I have a frying pan purchased from one of those sales.

Several organizations exist to assist with different aspects of the moving process. One such example is Marsha’s Helping Hand, which helps when clients, particularly elderly people, want to downsize.   

There are a lot of memories to manage and items to be packed up, distributed or possibly sold. Often the house itself must be sold. Many scenarios are possible – elderly people are downsizing or a home is being sold as part of an estate. 

Estate sales can be slow however.  Recently, the New York Times focused on this issue: delays can occur in transactions because of the dynamics between distant beneficiaries and the estate trustee, or even because of the emotional energy required by heirs who are assisting with the removal of the Deceased’s belongings. 

There are understandable reasons for the delays in the estate sale process. Not least of which is that often the people who want to do the job are themselves busy with multiple responsibilities, be it child care or parent care or the demands of a paying job. Help is available though.  Organizations, which cater to these increasing needs can assist, according to a recent Globe and Mail article.

These practical issues often dovetail with legal duties of the Estate Trustee, a role that may be more manageable when a plan is in place. Costs should always be considered though because ultimately, the Trustee has a duty to account to beneficiaries.

Enjoy your day.

Jonathan

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The words "aging population" have graduated from being an overworked cliche to a trite observation.  The implications are intuitively obvious in many contexts.  We've blogged here on this topic before and what it means for lawyers.  Our understanding of the implications continues to evolve, and it helps to keep an eye on other countries with similar levels of economic development, social services and legal cultures (and bigger populations hence more money to study the issue). 

One thing is becoming increasingly clear, and a quick tour over the ocean makes this crystal clear: our bodies seem to be outlasting our minds.

We all know the implications for increased demand for legal guardianship expertise, especially for The Sandwich Generation, and potential litigation later (which is enhanced by our general lack of knowledge of the depth of dementia across the population).  The Alzheimer's Society (see the Canadian website for a local view) states that 1 in 3 British over 65 years of age die from the disease.  The over-65s will constitute 25% of the UK's population by 2032, which means that 8% of all deaths (at least) in the UK will be caused by Alzheimers.  In other patients, the disease may still be present but not the cause of death.

Interestingly, Alzheimers was only the No. 5 cause of death among Americans over 65 years of age in 2004.  However, it turns out that Alzheimers and other forms of dementia often do not get noted on death certificates, at least in Boston.  If a similar trend exists elsewhere in the U.S., that might alter U.S. death statistics by raising the profile of Alzheimer's and dementia generally.    

Fire and brimstone, all is lost?  Not entirely.  Medical research can always help.  Also, see this article which offers a detailed applied statistical analysis on the U.S. demographic bubble (or lack thereof perhaps) in a non-estates context, yet still relevant to any lawyer to whom demographics is relevant.

Have a great day,

Chris Graham

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Listen to The Law as it Affects Older Adults

This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss a recent consultation paper from the Law Commission of Ontario(LCO) titled: The Law as it Affects Older Adults. The LCO has initiated a project to develop a legal framework for the law as it affects older persons and will be essential in addressing the needs and experiences of this group.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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The focus on Canada’s aging population, and the special needs of seniors, is becoming recognized in legal circles as a growing practice specialty: elder law. Elder law lawyers have a multi-disciplinary and multi-faceted practice that ranges from estates, to health law, to real estate. For example, an elder law lawyer may advise on “private care agreements” (where a child may provide care in exchange for equity in valuable real estate owned by a parent) or the benefits of long-term health insurance. 

As part of my own practice, I regularly advise elderly clients in all aspect of estate and trust litigation. Advising elderly clients requires specific knowledge about the various issues facing seniors. Such issues include elder abuse and exploitation, mental capacity and consent, and substitute decision making (whether by court-appointed guardianship or powers of attorney). 

There are various resources available for those looking to educate themselves on elder law issues. The fourth annual Canadian Conference on Elder Law will be held this year on November 13-15, 2008 in Vancouver. The conference will focus on such issues as capacity, support, public/private guardianship and law reform. For more information on the conference and for other information on elder law issues, see the Canadian Centre for Elder Law’s website at www.ccels.ca.

Have a great day!

Bianca La Neve

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There is no question that mental illness for the afflicted and families can be devastating.  The Globe and Mail helps to address the national scale of these illnesses in its recent excellent series entitled “Breakdown: Canada’s Mental Health Crisis”. 

Mixing personal stories, professionals’ views and some of the national consequences of the problem, the series provides a holistic perspective on the problem.

The overwhelming huge reader response speaks for itself.

To be sure, there is not much cheer to be found and much heartache, mitigated only somewhat by some success stories.  The ability of some families to pull together in awful circumstances can also offer inspiration to others.

Remarkable journalism.

Thanks for reading.

Sean Graham

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Who can forget the sad case of Terry Schiavo, the poor lady who suffered catastrophic brain damage in 1990 and was kept alive in a vegetative state on a feeding tube for 15 years?  Readers will remember the anguish involved when her husband was forced to litigate against her parents in order to get the tube removed so Terry could die in peace.  This became a powerful argument in favour of a "Living Will", which is basically a document in which individuals outline their "personal choices" regarding end-of-life treatments.  Living Wills became a feel-good legal product, a perceived solution to the heart-rending situations like Terry's.

Too bad the research shows that Living Wills may not live up to the hype.  According to a recent study by two University of California Irvine researchers, Professors Peter Ditto and Elizabeth Loftus, Living Wills appear to have serious defects.  One problem is that patient preferences change over time.  For instance, one tends to be more inclined against end-of-life treatments immediately after a hospital stay, but this changes with time.  Also, positive treatment results of family members make a patient more inclined to end-of-life treatment.  Many people who make Living Wills change their preferences but forget about their Living Will, or misidentify those preferences in the Living Will. 

Perhaps the most glaring weakness is that Living Wills do not appear to provide guidance  to surrogates who have read them.  According to the study, the accuracy of a surrogate who has read a Living Will in prediciting a loved one's treatment preferences is no higher than that of a surrogate who has not read the Living Will.  So a Living Will can be totally inconsistent with the patient's most recent intentions.   

Having a Living Will apparently makes both the patients and the surrogates feel better, so it's not all bad news. 

Have a safe day,

Chris Graham

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By all indications, the abuse of Powers of Attorney to misappropriate assets is on the rise. 

When a grantor gives powers to an attorney to manage the grantor’s property, it allows the attorney to assist the grantor in managing property, and in fact to take over management of property altogether if the grantor does not monitor the situation.  Often the very goal of the grantor is to allow someone else to completely take over management of one’s property due to age, potential incapacity or other reasons, so the grantor has no intention to monitor.

This is often a reasonable choice, and the law holds attorneys to a high standard to protect grantors.  However, the potential for abuse is immense.  Abuse can be willful or simply negligent, but in either case the damage can be devastating and irreversible.  In many cases attorneys who stray from their duties are never made to account, although they have that obligation.  Often they live with the grantor and have little or no oversight.  The legal fees in securing justice are generally high, and the chances of recovering on a judgment can be low.  In the result, legal proceedings might be impractical, however blatant abuse may be in a given case.

The best defence against this problem is awareness, so these varied results from a quick internet search are somewhat encouraging: a Florida law firm website; an excellent Vancouver Sun article; a synopsis of a TV news story; the New York Attorney General’s website; a news report of a Philadelphia trial; and a news release from Prince Edward Island’s provincial government commenting on the problem for World Elder Abuse Day.

This is the tip of a very large iceberg: by all indications lawyers, financial institutions, governments and of course the public will be wrestling with a growing problem for years to come.  

Thanks for reading.

Sean Graham

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A massive $110 million lawsuit has been brought by the Attorney General’s office in California against a “living trust mill that tricked senior citizens into using their retirement savings to buy annuities that often made less financial sense for the elderly victims but earned the con artists substantial commissions and other income.”

Estate Planning Law Firms.com quotes the Attorney General as saying the following:

“The perpetrators of this fraud deceived seniors into using their hard-earned retirement nest eggs to buy unneeded annuities that actually undermined their financial security. Living trust mills such as this one violate not only the law, but the trust of their elderly victims.”

What surprised me was the apparent scope of the alleged organization being sued by the Attorney General: between 250 and 300 sales agents and another 80 telemarketers were involved, allegedly soliciting elderly consumers through mailings, seminars, telemarketing, presentations at senior centers and other means, marketing their services as a way to avoid probate and estate taxes, then eventually convincing seniors to buy annuities that were, according to the Attorney General, not in their best interest.

Without commenting on this particular case, there does seem to have been a disturbing and growing trend in recent years of attempts to deprive the elderly of the considerable wealth concentrated in their hands.  

One more reason, if any were needed, to take great care in choosing investment and estate planning advisors.

Thanks for reading.

Sean Graham

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The Canadian Centre for Elder Law (CCEL), a division of the British Columbia Law Institute (BCLI), issued a media release on February 28, 2008 advising that it has just released its Study Paper on Predatory Lending Issues in Canada.

In its media release the CCEL noted that while the subprime mortgage crisis in the United States has made the issue of predatory lending a hot topic worldwide, little attention has been paid to the legal aspects of predatory lending in the Canadian mortgage market.

Ron Skolrood, Chair of the BCLI’s board of directors, remarks in the media release, “It appears that there are no specific laws to protect Canadians from a similar crisis occurring here”...“This study paper serves as a starting point for further discussion.”

The Executive Summary of the Study Paper states, “The study paper’s focus is primarily on how predatory lending may affect older homeowners, but similar issues may arise in connection with individuals who are purchasing a home and obtaining a new mortgage.”

Parts of the paper deal with factors in the Canadian mortgage market that may encourage or deter the development of predatory lending as well as existing Canadian legal remedies for abusive lending practices.

The media release notes that while many Canadians think of predatory lending and the mortgage crisis as an American phenomenon from which they are safe, and though the lending atmosphere in Canada has historically been more cautious than in the United States, the extent to which predatory lending occurs in Canada is largely unknown.

For those interested, a full text of the paper is available on the BCLI’s website (www.bcli.org). 

Have a great day.

Craig

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