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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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

Posted on November 20^th, 2007 by Hull & Hull LLP

Suzana Popovic-Montag:  Hi and welcome to Hull on Estates.  You’re listening to Episode #86 of our podcast, on Tuesday, November 20^th, 2007.

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.

Ian Hull:  Hi Suzana.

Suzana Popovic-Montag:  Hi there Ian.

Ian Hull:  This is Ian Hull, partner at Hull & Hull and…

Suzana Popovic-Montag:  Suzana Popovic-Montag, also a partner.

Ian Hull:  And we are very excited to come back to Hull on Estates.  We were out in Vancouver last week at a couple of conferences.  And one of the fun things that comes from these conferences, you get a little feedback from your social media efforts.  And it seems like a long time ago because Hull on Estates is now at #86.  But I was approached by a lawyer at one of the conferences we’re going to talk a little bit about.  And she said to me, you know, I remember the first 10 Hull on Estates that you and Suzana did, because we were dealing with two topics that she was caught right in the middle of.  And I looked at her and I said, oh, that’s fantastic.  And she said, and now you’re in the 80’s.  So I thought that was kind of neat because she has obviously followed our podcasts and blogs, but the podcasts so carefully, and its fun to get some feedbacks.  Obviously, there’s at least one person out there that’s enjoying what we’re having to say.

Suzana Popovic-Montag:  Thank goodness for that.

Ian Hull:  We don’t want to get our hopes up too high.  But it’s been great and it’s been really fun.  We’ve been, as I say, we had the opportunity so speak at two conferences last week in the great city of Vancouver.  The first Conference was a Conference through STEP.

Suzana Popovic-Montag:  And that was the Society of Trusts and Estate Practitioners that we are both members of.  And it was a really neat opportunity to speak to the practitioners out there about…we spoke about the family office and the family meeting process.

Ian Hull:  And again it was fun to tie our social media stuff back in because we were…I was talking to an estate planner after the session that we held and we were going through some details about some of the ideas that we’ve experienced.  And were able to say to them, look, just don’t be afraid to go look back on some old versions, but old sessions of our podcasts on Hull on Estate and Succession Planning because actually on the family meeting work, we spent probably about 20 - 25 podcasts on that, didn’t we?

Suzana Popovic-Montag:  We did.

Ian Hull:  And that was again in our first sort of series of them.  So it’s been a lot of fun to again get some feedback on that.  But that conference, the STEP session, was a remarkable group and we had some great feedback during the session about how to manage the transition by getting the family involved at a much more comprehensive and sophisticated level.

Suzana Popovic-Montag:  And it was great to see sort of the enthusiasm from the group there as well because I think that eventually, more and more people are going to start to realize that there is a benefit, both a cost benefit and a family benefit, to proceeding in that fashion.

Ian Hull:  So then we wanted to turn to in our discussion today on Hull on Estates, was the seminars that we were at and the sessions that we attended at, at the Elder Law Conference.  Now this is the Third Annual Canadian Conference on Elder Law.  This conference has been really spear-headed by the National Director, Laura Watts, who has brought together, year after year, incredible groups of different kinds of practitioners.  This wasn’t your average kind of Conference where you go, sit and listen.  We were able to work with social workers, doctors, lawyers, financial planners, accountants, all sorts of different allied professionals throughout the Elder Law community.  And we had a terrific time at the sessions.  One of the first, as Laura Watts noted at the open session of the general Conference, was that on Thursday of the Conference, there was a World Study Group on Elder Law.  And what Laura was able to do was bring together some of the leading international experts on the Elder Law, both from a medical and from a service and from a legal view, who talked about issues right from the financial issues, right through to simple, straightforward sort of questions and answers about fundamental aspects of how to care for and how to assist the Elder Law community.

Suzana Popovic-Montag:  And you know, Ian, I was sitting in the audience just thinking, what a remarkable opportunity it was to be at that Conference and what a wonderful job Laura had actually done in pulling together such an amazing group of people to speak on an issue that is really near and dear to the heart of almost everyone.  And particularly in these days with our demographics and the statistics being as they are, about, you know, the aging population.

Ian Hull:  And the sessions were broken down into some really, I thought was interesting, categories.  And what I thought they did was, in some ways, demonstrate precisely what issues that we have to sort of keep in mind when we’re dealing with questions of the Elder Law and the aging population.  We heard lots of statistics, which was fun to get a sense of what is coming down the pipe. One that stuck in my mind was the fact that our aging population in Canada is growing at approximately 11% per year.

Suzana Popovic-Montag:  That’s right.

Ian Hull:  And if anybody is to service an industry or, in our case, work with and assist that industry, they’re projecting 11% growth every year, it’s a phenomenal process to even stay up with the growth and to meaningfully service and work with the changes that are happening.

Suzana Popovic-Montag:  And just to put that, sort of, in perspective, within 10 years’ time, by 2017, they say that 1 in 5 Canadians are going to be senior citizens.  That’s like 20% of our population.  And it’s just staggering when you think about it in that perspective.

Ian Hull:  So the sessions that we…we were pleased to speak at one of the sessions that we were dealing with.  And we were in, sort of, a two-part group with just sort of focusing on Powers of Attorney litigation and practice.  Nina Kohn and Linda Whitten spoke.  Now, Nina’s a Professor at Syracuse Law School and Linda Whitten is at the…she’s a Professor of Law in the school of Valparaiso, I’m saying it wrong probably, university school of law in the US.  Linda, though, was very involved with the ACTEC, which is American College of Trust and Estate Counsel, in developing what is essentially a pro forma version of their Power of Attorney.  So, the American perspective was terrific to get into, to look at how Power of Attorney litigation is unfolding.  But the second part that you and I were involved with, when we spoke in the afternoon, was just trying to put an overlay of the practical impacts of the Power of Attorney litigation.

We focused on the fact that, in our experience and much of our discussions was…it was an hour and a half session…but it was a great interaction, terrific questions.  One of the things that, Suzana, I know you made the point was, is that this kind of litigation is tremendously hard on the parties.

Suzana Popovic-Montag:  It really is and it was interesting, the group that we were speaking with, agreed.  And they also shared some of their experiences and we had a group of police officers who were actually in our session.  And it was sort of a great opportunity to hear their perspective on dealing with these issues and the abuse of elders, or those situations.

Ian Hull:  Yeah, and you mentioned the police officers.  It was interesting because they raise the point that…I obviously…you always learn something at these conferences every five minutes it seems.  And one of the things at…we had some great officers, some from the Hamilton area and the Milton area and Toronto.  And they reminded us that they’re now a much more sophisticated resource available.  They are available…they have specialty divisions within each of the regions where they’re dealing with elder abuse.  And elder abuse was, I would say, one of the dominant themes of the Conference. It was sort of, how are we going to deal with elder abuse (a); and (b), what are some of the reform, or some of the legal steps that are being considered to help create situations that make it easier to deal with elder abuse?  And the police officer example was perfect, there’s a situation where society has now developed and decided to put resources into this to the point where we have specialty officers out there that are trained to deal with situations where an elder might be financially abused, or obviously physically abused.

Suzana Popovic-Montag:  And one of the things that I found most telling really from our discussions and from being at that Conference, is the fact that sometimes we forget, when we’re in our own daily practices, that these situations arise no matter what class of individuals are out there, no matter how much wealth is involved.  You can have people with a lot of money dealing with attorney issues, Power of Attorney abuses and you can have people with relatively limited resources dealing with the same kinds of situations.  And it’s just a matter of, you know, a scale really.  It’s the same old issues, just in different contexts.  And they have to be dealt with differently because of that.

Ian Hull:  I think it was interesting, as we start to want to wind up our discussion on this today, is the “who” that the Conference brought out.  And the opening session on the Friday morning was the Minister of Justice, which was phenomenal.

Suzana Popovic-Montag:  It was just…he was a wonderful, wonderful speaker.

Ian Hull:  And he really has his heart and soul into this issue.  And you could tell it, just by the way he conducted his remarks.  That’s followed up by, the next morning, the remarks of Chief Justice McLaughlin.  And then, followed with a great dinner for all the participants, with Michael Valpy, the senior writer from The Globe and Mail. I just thought it was a testament to the importance of the issue, that they were able to…the organizers, Laura in particular…were able to bring out those kinds of heavy hitters to a Conference of this nature.  So, the thing that I think is a great take-away from the Conference was that we are now, as a country, focusing on Elder Law at a level that is both exciting but also so, so important to a very, very important aspect of our practice and important part of our community.

Suzana Popovic-Montag:  And I highly recommend the Conference to anyone who’s interested in these issues.  It’s just an amazing opportunity to be at it, to learn from it and to take away from it whatever you possibly can.

Ian Hull:  And we’ll hopefully be there in 2008.

Suzana Popovic-Montag:  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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