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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This past Thursday, the Ontario Government announced that it would be implementing increased access to physiotherapy, exercise and fall prevention classes for the province’s seniors. As part of the announcement, health minister Deb Matthews said that the government will be spending $156 million (an increase of $10 million from last year) to provide more people in communities and long-term care homes with individualized physiotherapy, group exercise classes and services to prevent falls.

This announcement comes on the heels of “Living Longer, Living Well,” an extremely detailed, lengthy, and enlightening report submitted to the Ministry of Health by Dr. Samir K. Sinha. In his report, Dr. Sinha states that while “aging is inevitable, the proportion of Ontario’s population living longer and living well into their later years has never been greater.”

The report points to data that also suggests that Ontario is aging at a more rapid rate than ever before. For example, based on last year’s census, there were 1,878,325 Ontarians aged 65 years and older, representing 14.6 per cent of the province’s overall population. Although this number may seem small, it is important to note that the oldest baby boomers began turning 65 last year, meaning the number of seniors (usually defined as 65 and over) will likely double over the next twenty years, according to Dr. Sinha.

This demographic shift also means that there will be a dramatic increase in issues surrounding substitute decision-making, end-of-life decisions, capacity, power of attorney documents and elder financial abuse. Thankfully, the provincial and national legal communities have been focused on these issues for some time. David Smith recently blogged about his attendance at the Canadian Bar Association’s National Elder Law Conference, which has been happening for several years.

It is encouraging that the government is recognizing and adapting to the trends that those of us practicing in estates law have seen on the horizon for some time. The issues associated with the province’s aging population are extremely important and must continue to be addressed. As Dr. Sinha noted in his report: “[i]f left unaddressed, our demographic challenge could bankrupt the province.”

Thanks for reading.

Ian M. Hull

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I was delighted and honoured to be able to speak at the Canadian Bar Association's Elder Law Conference earlier this week. The Conference was a great way to bring together leaders in the field and to consider legal responses to the needs of our aging population.

Due to his involvement in a trial, I delivered a paper authored by my partner, Ian Hull, on the subject of practice and procedure in estate and capacity litigation. Among other issues, the paper considered the rights of beneficiaries to disclosure in the context of estates and trusts. I have included an abridged excerpt:

"As a general rule, the beneficiaries of a trust may, on reasonable notice, require the trustees to produce for their inspection any trust document that the beneficiaries wish to see. While little debate exists concerning a beneficiary’s right to access trust documents or information upon request, there has been much debate concerning upon what legal basis the right of the beneficiary to access such information exists.

The classic viewpoint as to why a beneficiary of a trust is entitled to view trust documents characterizes the right as a “proprietary right” in the documents themselves. Simply put, the classic view as to why a beneficiary may be entitled to view trust documents is that the beneficiary has an ownership interest in the documents themselves. As the beneficiary is in part an owner of the documents, they are entitled to view the documents upon request.

The characterization of a beneficiary’s right to access documents from the trust as a “proprietary right” has been highly criticized over the years. In Schmidt v. Rosewood Trust (Isle of Man), Lord Walker, in discussing Lord Wrenbury’s “proprietary right” description in O’Rourke v. Darbishire, states that the characterization of the right as a proprietary right gives rise to far more problems than it solves.

Simply put, in the more modern interpretation the beneficiary’s right to view trust documents is founded upon the fiduciary duty which the trustee owes to the beneficiary, and not upon any proprietary interest that the beneficiary may have in the trust document itself.

Whether you accept the classic definition of why a beneficiary is entitled to access trust documents as a proprietary right, or accept the more modern characterization of the right being founded on the fiduciary duty which is owed by the trustee to the beneficiary, it is clear that upon a beneficiary making a request to view the trust documents, the trustee is under an obligation to provide the beneficiary access to the documents."

Thank you to the Canadian Bar Association for hosting this event and for the opportunity to address this conference, and thank you for reading!

David M. Smith

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We’ve all heard about Orders for the financial support of spouses, children and dependants, but what about Orders that adult children must support their elderly parents? In a recent article from the Toronto Star, the paper outlines a law that was recently passed in China that enables parents to sue their adult children for not visiting enough. As the article makes clear, the concept behind the law was to offer some relief to the government of a rapidly aging population, and ensure that some of the costs for the care of the elderly are passed on to the family.

While the idea of parents suing their children for not visiting often enough may seem shocking to many, few people may realize that similar laws are already in effect in every province in Canada except for Alberta. In Ontario, s.32 of the Family Law Act provides: “(e)very child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.”

The topic of “finial law”, as it is known, was discussed in a September 2011 article from the Globe and Mail. As the article points out, laws were passed by cash strapped provinces at the height of the Great Depression that enabled the state to impose a financial duty on children to look after their poverty-stricken parents. While the Canadian laws do not go as far as their Chinese counterpart (there is no requirement to visit your parents in Canada), the laws themselves are still on the books.

While cases attempting to impose this duty are rare, recently in Anderson v. Anderson, the BC Court was forced to consider a claim brought by an elderly mother for support from her adult children. While the mother’s claim was eventually dismissed (she had been estranged from her children for quite some time), that the court considered her request (and even initially granted her interim support of $10 per month from each child), may come as a surprise to many.

Children of the world, you have been warned.

Stuart Clark 

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“You never call”: a common lament of elderly parents aimed at their adult children. Now, it appears that failing to call, or more specifically, to visit your parents in China may result in legal action.

According to a recent Toronto Star article, China has recently amended its law on the elderly to require that adult children visit their parents “often”, or risk being sued by them. 

China, perhaps more than any other country, is facing a significant issue with its aging population. In just fifty years, the average life expectancy soared from 41 to 73. Coupled with family planning policies that limit most families to a single child, and a lack of affordable options for the care of the elderly, such as retirement or nursing homes, this has led to an elder care crisis. The legislation is aimed at assisting the elderly in seeking care.

While the legislation may seem extreme, there is already legislation on the books in Ontario to a similar effect. While it does not require visits, section 32 of the Family Law Act provides that an adult child has “an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.”

The Ontario provision was applied in a few reported decisions. It was discussed in an adoption decision, Re Proposed Adoption of Q.(A.L.K.). There, the court noted that “dependencies shift” from parent to child, and an adult child has a “clear responsibility … to shore up the parent’s own financial resources, if the parent has need of that.”

Note to my children: Govern yourselves accordingly, Christopher and Marc.

Have a great weekend.

Paul Trudelle

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The Law Commission of Ontario has recommended changes in the legal system to ensure that the rights and circumstances of older people are recognized and respected.  The idea that older people are part of a vulnerable group has been used to justify significant interference with their independence.  It is an untrue assumption that all older people are dependent, frail, and in need of protection.  It is equally untrue to assume that all older people are affluent and capable.  Laws and policies need to be based on evidence, says the Law Commission of Ontario, not on assumptions. 

The following are some of the obstacles facing older people:

1.  The length of time it takes to get legal redress.  For an older person, his or her legal rights may seem meaningless if they may not be alive to see the result. 

2.  Many older people have a lesser awareness of their legal rights.  Information about legal rights is often provided on the internet.  The Special Senate Committee on Aging says that this assumes people’s ability to access the internet.  Older women, in particular, are less likely to have access to the internet. 

3.  Economic disadvantage.  Most older people are not employed and rely on fixed incomes.  They may not have the financial ability to participate in a lawsuit.

4.  Cognitive deficits that prevent them from accessing justice. 

Changes to the law need to address these, and other concerns that affect older people.

Holly LeValliant

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If you live in a retirement home, the Retirement Homes Act provides you with certain legal protections because you are part of a potentially vulnerable group.
The fundamental principle of the Act is to ensure that a retirement home is “operated so that it is a place where residents live with dignity, respect, privacy and autonomy, in security, safety and comfort and can make informed choices about their care options.”

Under the Act, your landlord is required to provide you with an information package that includes information about the services provided in the home, various fees, staffing, and your other rights under the Act. Your landlord must also post information in the home such as the Residents’ Bill of Rights, the retirement home’s license, and what to do if there is an evacuation in the home.

The Act creates the Retirement Homes Regulatory Authority with the power to license homes and conduct inspections, investigations and enforcement, in addition to developing mandatory care and safety standards. According to the Advocacy Centre for the Elderly, the Regulatory Authority does not, however, have the power to do anything about any reports of abuse it receives other than to alert the police, fire officials or public health officials.

For more information on the Act, a link to a report of the Advocacy Centre for the Elderly’s may be found here.

Holly LeValliant

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If you are a member of the older population of Canada and have a conflict with your family, a growing service called “elder mediation” may help you.  Elder mediation focuses on disputes that arise in the context of aging, and may be triggered by life events or changes in your circumstances as a result of your age (such as the death of your spouse). 

Disputes in your family may arise as you get older, or conflict may not have been dealt with in the past could resurface, that may be resolved at mediation.  According to the Canadian Centre for Elder Law, elder mediation can deal with a wide range of issues such as:

-          Powers of Attorney

-          Estate planning

-          Adult guardianship

-          Assisted living or long-term care

-          Private care agreements

-          Caregiver issues

-          Lifestyle choices (such as a remarriage)

-          Independence

-          Mental illness and dementia

-          Abuse, neglect or self-neglect and

-          Employment-related disputes

Elder mediation is part of the trend of the development of programs, services, policies and legislation geared toward addressing the needs of our older population, and is a field that is likely to continue to grow. 

Holly LeValliant

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On July 11, 2012, the Law Commission of Ontario released its Framework for the Law as it Affects Older Adults (“Framework”). 

The culmination of many years of research and public consultation, the Framework and its accompanying Final Report aim to assist policy-makers, legislators, advocates, courts, community organizations, and others in understanding and evaluating the effects of laws, policies and practices on older adults, and aim to provide a foundation for law reform efforts concerning older adults.

One of the objectives of the Framework and its Final Report is to highlight circumstances in which Ontario laws, applicable generally, may have unanticipated and negative effects on older adults. The Final Report provides examples of where the law may fail to take into account the needs and experiences of older adults, and may therefore fail to address issues of pressing importance to this group and, as a result, older adults may be left without adequate supports or protections. Examples include:

• Capacity and guardianship laws that are not age-specific or disability-specific. The laws apply equally to persons with developmental disabilities at any point in their lives, to persons with psychiatric disabilities, and to persons who develop cognitive disabilities such as Alzheimer’s disease as they age.
• Laws revoking existing wills upon marriage may mean that older persons who develop dementia may not be able to control the disposition of their estates after a late-life marriage.
• The Substitute Decisions Act makes the appointment of substitute decision makers and creation of powers of attorney an unsupervised process, while making the mechanism for monitoring the use of continuing powers of attorney and the abusive acts of the substitute decision makers inaccessible, complex, time-consuming and expensive. As a result, the misuse and abuse of powers of attorney are now an increasingly common form of elder abuse.

A copy of the Framework can be found here. A copy of the comprehensive 293-page Final Report can be found here. 

Thanks for reading,

Saman Jaffery - Click here for more information on Saman Jaffery.

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Working in the field of estates, wills, and trusts law has provided me with the opportunity to interact with and provide services to elder people and their adult children.  Given the advancement in modern medicine and the current trend towards healthy, active lifestyles, life expectancy is at an all-time high.  Coupled with this is the fact that seniors generally have more savings, assets, and disposable income.  Overall, this is a great thing, but does unfortunately carry with it certain undesirable effects. 

One such effect was recently discussed in an article in the Financial Post which highlighted that financial abuse amongst seniors by scam artists is on the rise in both the United States and Canada.
Not only do seniors have more disposable income, seniors are considered good targets on the basis that they do not appreciate the value of their assets (such as property increasing in value), may be unwilling to take action against a scammer due to embarrassment, and the advancement in technology not only makes managing funds more difficult, but also makes it easier for scammers to appeal to seniors.
 

Signs that such an abuse may be occurring include: large withdrawals from bank accounts; withdrawals that seem out of the ordinary; or a lack of available funds to make essential payments.  Amongst other avenues, two options are available to seniors to avoid falling into such a scam.
One low cost option available to seniors is to include someone they trust, such as a son or daughter, as a joint account holder to their bank accounts.  This can easily be set up by visiting one's local bank branch.  Creating a joint account gives account holders certain powers including the power to review bank statements and certain control over the assets in the account.  However, this is not a fix all solution as many banks allow one joint account holder to withdraw or transfer funds without the agreement of the other account holder. 
 

Given this, a second, legally enforceable, option available to seniors is to appoint a power of attorney for property.  Executing a power of attorney for property enables the designated attorney the power to make binding decisions on another's behalf, minus the power to make a will.  As the law imposes a fiduciary duty upon the attorney, it follows that the attorney must set aside their interests and work solely for the benefit of the appointor.  There is also a duty that attorneys keep accounts of all transactions.  Although setting up a power of attorney requires the use of a qualified lawyer, it does carry with it the enforceability and protection of the court.
 

On a different note, July 1, 2012 notes the coming into force of the revised pre-formatted, fillable estate forms under Rule 74 of the Rules of Civil Procedure.  The new court forms can be downloaded at: http://www.ontariocourtforms.on.ca/english/civil/pre-formatted-fillable-estates-forms.  Of the new forms, following the decision in Granovsky Estate v. Ontario, 1998 CanLII 14913 (ON SC), a case I blogged about on June 18, 2012, the courts have introduced a form which refers only to assets referred to in the Deceased's Will.  No doubt this will make things easier for those who have drafted multiple wills.
 

Ian Hull - Click here for more information on Ian Hull. 

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As Canada's population ages, elder abuse has come out of the shadows and into the mainstream of public consciousness. It is now both regularly featured as a topic of conversation in the government and the media, with proposed changes to the law being hotly debated, raising awareness of the topic in its wake. Perhaps you have even seen the recent television commercial that the Government of Canada has put out dealing with the subject matter, in which a young individual forcibly removes money from the wallet of what appears to be his mother, or violently shakes an elderly family member, before we are finally urged to face the reality of what is going on and not allow it to continue.

With the increased media and government attention on the matter we can no longer say that we are unaware of what is going on around us. But what happens when someone commits elder abuse?  When you steal or commit fraud against an elderly family member is the penalty no different than if you had done the same against a stranger? When and how does elder abuse become a criminal offence?
 

When elder abuse becomes criminal in nature, like any other criminal offence, it is dealt with by the Criminal Code. While there are specific provisions in the Criminal Code that reference situations of elder abuse (such as s. 331, theft by a person holding a power of attorney), many of the provisions are general in nature, with elder abuse merely being a subcategory within the broader general heading. These offences include s. 322(1) (theft), s. 346(1) (extortion), and s. 366 (forgery). Being found guilty of committing any of these offences can carry some serious repercussions, with possibly penalties including maximum sentences of 10 years in prison for theft, to even life in prison for extortion.
 

The recent case of R. v. Kaziuk does an excellent job at demonstrating the level of severity with which the court is taking cases of elder abuse when they come before it. In Kaziuk, the court dealt with a case in which the accused was alleged to have placed mortgages on his mother's property for his own benefit using the power of attorney that she had granted in his favour. In the words of the court, by the time the accused was done, his 88 year old mother was homeless, wiped out financially, and suffered from a broken heart after her only child did this to her. The accused was found guilty, and despite the Crown only seeking a sentence of between 3-4 years, the accused was sentenced to 10 years in prison by the judge. The absolute disgust which Justice Baldwin had for the accused can be seen in the language of the judgment, writing; "Mr. Kaziuk would rip-off the wings of all the angels in heaven and sell them to the devil for his own gain if he could…Not even the notorious fraudster Bernie Madoff was guilty of destroying his own mother as Mr. Kaziuk has repeatedly done. In jail, this offender will be better off physically than his own mother. He will be sheltered, fed regularly, and kept warm."
 

When elder abuse becomes criminal in nature a person can be charged under the Criminal Code. While the decision as to whether or not a person will be charged ultimately rests with the police and the Crown, cases like Kaziuk clearly demonstrate that when these cases get before the courts the judges are taking them seriously.  Elder abuse is a serious problem. With raised awareness of both the problem and the possible penalties for those who commit it we can hopefully help put an end to it.
 

Ian Hull - Click here for more information on Ian Hull. 

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A new Bill introduced in the House of Commons proposes changes to the Criminal Code of Canada aimed at imposing stiffer penalties on perpetrators of elder abuse. 

Bill C-36, the Protecting Canada’s Seniors Act, will amend the Criminal Code’s sentencing provisions to add age and other personal circumstances of the victim including health and financial situation as aggravating factors warranting increased sentences. Promoters say that the changes would prompt judges to impose harsher penalties in cases of elder abuse.  

However critics have said that it fails to address the root causes of elder abuse, such as low pay for caregivers, ineffective regulation of institutions, weak social security, and lack of affordable housing for seniors. Some of these issues, however, would have to be addressed at the provincial level. 

Clearly Bill C-36 will not address situations which fall short of criminal activity.  It also only applies once abuse has occurred, and does little to prevent it.

As estate litigators, we frequently deal with situations where a vulnerable elderly person has allegedly been taken advantage of by a caregiver or family member.  The majority of these cases are considered “civil matters” which means that the elderly person, or another interested party, would have to initiate civil proceedings.  And as MP Jean Crowder pointed out in a recent article, many seniors are not going to take steps to report abuse because they are dependent on the care provided by their abusers.

Although Bill C-36 is a step in the right direction, more needs to be done to protect vulnerable seniors from all forms of abuse. 

A 2009 Statistics Canada report found 154,000 Canadians over 55, or two per cent, had reported being the victim of violence in the previous 12 months. Some 333,000 senior households reported being the victim of a household crime.

Learn more about the new legislation here.

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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