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. 

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.

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. 

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. 

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.

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.

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

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.

• 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.
 

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.

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

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.

Social Media and the Canadian Conference on Elder Law - Hull on Estate and Succession Planning #161

Posted on April 22, 2009 by Hull & Hull LLP

Welcome to Hull on Estates and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag.  The podcast you’re listening to will provide information and insights into estate planning in Canada.  From the offices of Hull & Hull in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag:   Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 161 of our podcast on Tuesday, April 21, 2009.

Ian Hull:   Hi Suzana.

Suzana Popovic-Montag:   Hi Ian, how are you today?

Ian Hull:    Just great, thanks.

Suzana Popovic-Montag:   That’s good.

Ian Hull:    Excited to be podcasting today.  I did actually manage to get away for a couple of days last week and took my iPod touch with me when I travelled and got caught up on our video because I sometimes don’t get a chance to listen to us on the video and see how it goes and it was kind of fun.  So I was re-invigorated with some new ideas of how we should be presenting.

Suzana Popovic-Montag:   Right.

Ian Hull:    And one of the ideas that I thought would be useful is a big part of what we’re trying to accomplish with our podcasts and video and audio blog is more of, from a succession planning, estate planning perspective, we try to touch on general topic areas.  So I thought what can be helpful is to know what’s going on around us.  We’re in the social media community, we obviously want to spread our word and they want to spread other’s words.  But one of the conferences that’s coming up that I thought was of real interest to those in our field is this Canadian Bar Association Conference and its coming up.  And the neat thing is its coming up in the great town of Kingston, Ontario which hosts the Podcasters Across Borders Conference every June which is a fantastic social media conference.

Suzana Popovic-Montag:   And you go to that every year, don’t you?

Ian Hull:    I try to.  I don’t know if I’ll be able to make it this year because of a family commitment but it’s a great conference on the social media side.  The organizers have put together, it’s an Elder Law Conference.  And I guess the title of it is The Canadian Conference on Elder Law, put on by the Canadian Bar Association.  But what I thought was of interest was some of the topic areas.  And it’s neat to see what are these hot topics in the area of elder law and where people are sort of discussing.  We have been out to the Canadian Conference on Elder Law in Vancouver for a few years now in a row.  A terrific conference and really the leading Continuing Legal Education conference in the country.  And now its being sort of…and this isn’t the first year that this group has done it…it’s sort of being repeated in some ways with great speakers in the Elder Law Conference in Kingston.

Suzana Popovic-Montag:   And its interesting, Ian, with these conferences, they’re not just for lawyers either and some of them are geared to have certainly a legal component to it but there is also you know the police aspect to elder abuse kinds of issues.  There are medical individuals, medical professionals, who come to these conferences.  There’s a wide cross-section of people in addition to lawyers who are actually taking notice of the issues that arise in this whole area.

Ian Hull:    Absolutely and the organizers we know well, its Mary-Alice Thompson from Kingston and Professor David Freedman from Queen’s University.  The conference is theory in practice and because the area of elder law touches both professionals and all various schemes of professionals, the theory in practice theme is really quite interesting.  And one of the first sessions that they’re talking about is assessing the assessor.  And we learned a lot about that quite some time ago in the Re Koch decision which will be in the show notes about what the Courts started to expect about an assessor but that decision is now over a decade old and so its really fascinating dialogue because the question of assessment of the capacity, the whole expectation is so fundamental to elder law.  Because as we know, a finding of incapacity must be made before we can get a guardianship appointment if you go to Court to get a guardian appointed.  And typically a lot of people will say they don’t want their Power of Attorney acted on until there’s a finding of incapacity.

Suzana Popovic-Montag:   That’s right.

Ian Hull:    So that capacity assessor is front line the most important person in the food chain of unloading into this world of incapacity.  And it happens to be the first topic of the seminar they’re going to be doing down in Kingston, this whole question of assessing that capacity assessor and what are the pros, the cons, what should be expected and so on.  So I thought maybe we could take a couple of minutes talking about what we see in our practice as important elements of a good assessment and where we might see some problems with the assessment.

Suzana Popovic-Montag:   And that’s a great idea, Ian, because I know in our companion podcast, Hull on Estates, some of our lawyers have spoken just recently on the issue of capacity assessments and assessors in particular.  And given how important the ultimate finding by an assessor can be, and how it can actually take away one’s liberties, to make sure that that process is properly carried out by someone who’s qualified and knows the legal requisites for a finding of a capacity, I think is just crucial.  And I know you’ve written actually about the topic in the past and I believe it was Hilary Laidlaw, one of our colleagues, has sort of coined a phrase where an assessor has got to probe and verify as part of their testing for capacity.  And maybe we could just flush that out a little bit.

Ian Hull:    Well absolutely because you see really, like you say, its this moment in time where you are going to eliminate freedom essentially to do what you want to do, that the Courts are going to be very sensitive to.  And so as you say, Hilary Laidlaw has been a big proponent of this concept that you need to take 2 steps in the process.  You need to ask the right questions and then you need to verify if those answers make sense and that they are indeed true.  And we’ve had podcasts in the past and we’ve talked a lot about the recent Law Society rules about verifying clients.  And it’s the same thing.  You identify, so you probe, you ask who is your uncle and who is your aunt and maybe ask some questions about their abilities to cognitively follow you along.  And then you follow-up with some verification.  And if, after your meeting, you find out that she was talking about Stephen Harper’s aunt and not her aunt, then the bells go off.  So that’s very true and it’s a good way of looking at it in terms of the analysis, that high expectation to probe and verify in the context of the Courts who are just simply not going to allow you…they’re not going to allow themselves to make a finding of incapacity unless its clear.

Suzana Popovic-Montag:   That’s right.

Ian Hull:    Because of the human impact of that.  I mean, you’re handcuffing this person and they’re not easy handcuffs to get out of.

Suzana Popovic-Montag:   That’s for sure.

Ian Hull:    And we have seen in the past where people want to get out of that, they want to set aside a finding of incapacity and in Ontario we have a whole Board, the Consent and Capacity Board where people can go to.  And it’s a hearing and it’s a really well done process.  The hearing officers are superb and the process is very, in a sense, user-friendly.  But I mean again, once you’ve made that finding of incapacity, it’s very hard to let it go.  And then of course if a judge makes that finding of incapacity, it’s even harder.

Suzana Popovic-Montag:   That’s right.

Ian Hull:    So one of the things I guess I would say as I was looking to assess the assessor is also look at the source.  I mean there’s nothing like delegating to good, authoritative, well-versed people.  And you’re essentially delegating a serious part of the process, whether you’re caring for your mother or father or whether you’re asking as a lawyer or whatever, who you’re going to outsource that job to, you want to make sure is well qualified.  And an easy starting point in Ontario anyway which is great is the Ministry of the Attorney General has a list. And there’s an assessor’s list that we can go to.  So that’s a good starting point and then we can start to look at their qualifications and not be afraid to Google and do all the sorts of things to test it, ask around, like any professional you’re going to get involved.  You’re essentially going to a specialist.  And if you’re going to a specialist, you want to, I think anyway, to say to my clients look, make sure we know who we’re getting ourselves into.

Suzana Popovic-Montag:   And the reason that’s so important, of course, is because the question or the whole threshold of capacity is a legal concept that has to be explained to people who aren’t necessarily qualified as assessors to do the determination.  And many times we’ll see people go to their family doctors to get an assessment of capacity and you want to make sure in those situations that the doctor, even though they are a long-term doctor or a long-term care giver, that they know what is actually required for that finding.  Because it’s very specific and important.

Ian Hull:    Absolutely.  Alright.  Well, we’ve assessed the assessor.  We’ve talked about this terrific conference that’s coming to Kingston.  And I guess if somebody might ask, it’s Friday, June 12^th, 2009 and its being put on by the Ontario Bar Association, Continuing Legal Education in the Elder Law section.  It’s called Elder Law: Theory and Practice.  We may have some more to say about this upcoming conference because of the interesting topics that are going to be canvassed.

So thank you very much for joining us today and thank you Suzana.

Suzana Popovic-Montag:   Thanks very much Ian.

You have been listening to Hull on Estates and Succession Planning by Ian Hull and Suzana Popovic-Montag.  The podcast that you have been listening to has been provided as an information service.  It is a summary of current issues in estates and estate planning.  It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.

To listen to other Hull & Hull podcasts, or leave any questions or comments, please visit our website at hullestatemediation.com. 

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

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

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.

The Law as it Affects Older Adults - Hull on Estates Podcast #134

Posted on October 28^th, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi and welcome to Hull on Estates. You’re listening to episode 134 of our podcast on Tuesday, October 28^th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.  Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

Suzana Popovic-Montag: Hi this is Suzana Popovic-Montag.

Ian Hull: And this is Ian Hull. And we are back on Hull on Estates for, I guess what you indicated at the outset, 134. So it’s been a continuing ride and always interesting. So please, we always look forward to hearing from you. And we encourage you to check out our daily blog. Suzana and I both do a podcast that is an audio and a video podcast plus we have our daily blog at estatelaw.hullandhull.com where we touch on daily issues of interest in the area of estates, not just legal but personal and other matters that we touch on. So please feel free to check us out and also send us a note if you have any comments.

Alright Suzana, well what we were going to talk about today was we thought was an interesting report that hasn’t seen the sort of mainstream media exposure that we think it might not ever see. But we’re going to do our best to put it through the back line of the internet world. And first of all, just by way of background, it’s a report written, a preliminary report written by the Law Commission of Ontario. And this is the successor, thank goodness finally, successor of the Law Reform Commission of Ontario. The Law Reform Commission of Ontario was established, worked intensely in the 70s and the 80s and the 70s in particular with things like changes to the Family Law Act and the Succession Law Reform Act in 1978 when Roy McMurtry was the Attorney-General. In those days, the law was really being pushed by this branch of the government, at that time, the Law Reform Commission. It was reinstated by Michael Bryant in, I forget the exact year, but within the last few years certainly, when the new Liberal government came in. Now they’re not so new but when they first came in, Michael Bryant had the vision to bring it back in. And it really is a source of pushing the law forward. We would not see the family law legislation that we did in the 70s and the 80s, nor would we have seen the changes to the Succession Law Reform Act without the Law Reform Commission then and we’re going to probably hopefully see some real positive impacts of this. So the thing we wanted to talk about was a consultation paper that came out in May of 2008. And again, may have gone below the radar screen for some but is a timely topic for Suzana and I as we are getting organized to head out to Vancouver for our trip for the Canadian Conference on Elder Law where we are speaking at it. That is the preeminent conference on Elder Law and one that we really enjoy speaking at. So in the course of getting ready for that, we have been working through some of the developments in 2008 and this May 2008 Ontario Law Commission of Ontario report was vital and its called “The Law as it affects Older Adults”.

Suzana Popovic-Montag: And it really seems to me, Ian, to be a timely report in the sense that there is so much more of an awareness of, you know, the elderly community and the fact that we have an aging society. And we, frequently when we speak about these topics, we talk about the statistics and they’re very interesting and especially as they get updated on a regular basis.

Ian Hull: Well we’re going to go through some of those statistics, because this report does it. But at 30,000 feet, the report, we want to get through this in this podcast and sort of just give people an idea of it. Its obviously available on the web, easily linked to. But the report really, and the introduction of it, gives us some interesting background facts that we’ll talk about in a moment here. But it really, it touches on sort of the fundamental issues of national and international policy reforms, what’s going on out there, what frameworks we’re working within.

Suzana Popovic-Montag: It also sets out sort of the stereotypes of ageism, paternalism and the law and how it affects the elderly population, as well as sets out an interesting discussion about how age is used as a decision-making criterion in a lot of the legislation that’s existing right now.

Ian Hull: And one area where we constantly struggle is participation in access to the legal system and to the services available for the elderly. When you get into situations of mental cognition and mental frailty, it is so difficult for elderly people to actually engage in the process of the system. So the report goes through a really interesting analysis of that.

Suzana Popovic-Montag: And apart from the legal ramifications or the legal implications of these kinds of discussions, the report also talks about the reality of the relationships that elderly people have with others, with their family members and with society as well. So it sets out some discussions on elder care, elder abuse and also recognizes the fact that older adults are caregivers to others as well.

It then goes on to talk about some secure and dignified living environments and it describes the difference between a retirement home and a nursing home and how the legislation applies to each of those different arrangements.

Ian Hull: So Suzana, coming back to your statistics, what, its always good to get a sort of framework of what we’re working with here and just how important this topic is to Canada over the next twenty years.

Suzana Popovic-Montag: And the numbers really are quite surprising, at least to me they are. The number of Canadians they say that are currently over the age of 65 is expected to double in the next little while and so where it was 4.2 million back in 2005, they’re predicting that its going to be 9.8 million in 2036.

Ian Hull: So with this growing demographic in Canada, we also enjoy a wide variety of diversity within our communities and of course that community is becoming elderly as well. So each of the cultural and unique aspects of the various communities in Canada play out with the elderly and this report really struggles with the different, and that’s why they touch on the international perspective, is because they really do touch on the importance of factoring in elder care, elder law in the context of a cultural nation that Canada is.

Suzana Popovic-Montag: And even within the grouping of the elderly, I think the report is really intuitive in that it recognizes that and sort of breaks it down into three different categories of what they call the young old, the middle old and then the frail old, recognizing the fact that even though someone may be over the age of 65, they can still be a very when they say young old in the sense of very vibrant, very self-independent, and functioning without the assistance of anyone. Whereas there are different gradations of what you’re capable of as you get older.

Ian Hull: And, you know, I think that’s a great illustration of the sort of level of analysis that this consultation report sends us through. It doesn’t just say people are getting old, we have to worry. They get into some really tough questions. And by grading it that way and breaking down the elderly category into sub-categories, identifying our immigrant population, identifying our diverse culture, identifying the fact that we deal with a predominantly female audience at some point in the statistics. This report really is throwing out all of the different variables to the sort of culture of the elderly and how we have to consider them and their place in society. So we also see a unique twist on it too because I think for the first time, certainly in any meaningful way, they throw out the option of considering how we are going to deal with the proportionate growth and also the trend among the fact that this, what we’ll call how you describe, this new categories of the young old, how we’re going to accommodate them in the work force because many of the young old aren’t prepared to simply quit work and in fact with this economic downturn, I’m told that the statistics are that the young old are going to be wanting to stay in or come back into the work force as they feel they have lost enough of their savings that has put themselves in danger. So its going to be an interesting economic tug on the whole economy.

Alright, so now that we’ve talked about sort of the background, and as I say, I think the summary that we started the podcast with really touches on the importance of the various issues. I just wanted to before we close talk about the one point that I thought was really well demonstrated and one that this consultation paper has thrown out to the community to address, and that is, some of the international and national frameworks. And where they started from, and I just think it’s, as a say, it’s a good starting point but its also a good finishing point, was that they looked at the United Nations Principles for Older Persons and they talked about five principles that the United Nations felt should be considered in pursuing elder law and elder care.

Suzana Popovic-Montag: And those five principles were: independence, participation, care, self-fulfilment and dignity, which I think really are five of the main things to keep in mind when you’re dealing with these kinds of situations. And I think very intuitive recognition by the United Nations of the fact that this really does summarize the nub of the issues.

Ian Hull: So they took those five principles and they’ve thrown those out as we have thrown them out, into the gauntlet of how we intend to deal with the law as it affects older adults and that consultation paper is out there, they’re looking for feedback and input and at the very least, it’s a good read and interesting sort of parameters that are set out to give us some food for thought and to see where this law and the important law of elder law will be developing over the next ten years. So kudos to the Law Commission of Ontario to get us thinking and asking really useful and intuitive questions as opposed to just saying there’s a problem, go fix it.

Suzana Popovic-Montag: And I guess that brings us to the end of this podcast. I’m Suzana Popovic-Montag.

Ian Hull: I’m Ian Hull. Thank you very much for listening. And again, please feel free to give us some feedback at hull.lawyers@gmail.com.

Suzana Popovic-Montag: And feel free to visit our blog at estatelaw.hullandhull.com. Thanks very much, Ian.

Ian Hull: Thanks Suzana.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

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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

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

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

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

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