The Law as it Affects Older Adults – Hull on Estates #134
Listen to The Law as it Affects Older Adults
This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss a recent consultation paper from the Law Commission of Ontario(LCO) titled: The Law as it Affects Older Adults. The LCO has initiated a project to develop a legal framework for the law as it affects older persons and will be essential in addressing the needs and experiences of this group.
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The Law as it Affects Older Adults – Hull on Estates Podcast #134
Posted on October 28th, 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 28th, 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 firstname.lastname@example.org.
Suzana Popovic-Montag: And feel free to visit our blog at estatelaw.hullandhull.com. Thanks very much, Ian.
Ian Hull: Thanks Suzana.
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