Today’s blog is authored by Chigozie Enwereuzo, LPP student-at-law with Hull & Hull LLP

Lawyers owe their elderly clients the same general duties and obligations owed to any other client. The act of providing older adults with legal advice or representation is an undertaking to be taken seriously and not lightly assumed or perfunctorily discharged.

Sadly, however, complaints from this category of clients about being subjected to assumptions, stereotyping and ageism by their own lawyers have been on the rise over the years. Their complaints include being presumptuously treated as persons with mental impairment or borderline capacity, as well as being made to grapple with their counsel’s assumptions that their problems always centre on issues of death and disability.

Ageism and stereotyping are harmful to elderly clients as they all do not fit the detrimental characterization of the frail and vulnerable senior citizen. These seemingly unconscious assumptions and beliefs are especially prevalent amongst practitioners of wills, estates, and trust law.

Consider, for instance, the assumption that elderly people are exclusively prone to suffering from dementia. According to the Landmark Study (the “Study”) of the Alzheimer Society of Canada, advancing age is the strongest known risk factor for dementia, but dementia is not a normal part of aging.

Dementia is an umbrella term that describes a set of symptoms caused by what is most often a progressive loss of brain function and structure over time. Symptoms can include (but are not limited to) impaired judgment, changes in mood or behaviour, memory loss, disorientation, language difficulties, decreased ability to perform daily activities, and problems with abstract thinking. Some forms of dementia can affect other areas of functioning, including vision and movement.  The Study found that young adults also suffer from the disease (“young onset dementia”) with the exact same features that encompass decline in one or more areas of cognition and interference with the individual’s independence in everyday functioning.

The Study debunked the widely held assumptions about dementia, noting that older adults who develop dementia can live life with dementia from three to more than twenty years after their diagnosis. Thus, most elderly clients, including those over eighty years of age, will be capable and never suffer any cognitive impairment. Their capacity would include the ability to process, retain and understand the information relevant to a decision and to appreciate the reasonably foreseeable consequences of a decision or lack of one (Starson v. Swayze, [2003] 1 S.C.R.722.).

In many situations, the initial contact that an elderly client makes with a practitioner is done while being accompanied by a family member or a caregiver. Such a companion may have merely transported the elder to the lawyer’s office, but elders have noted a preference by lawyers to engage with the usually younger companion on a matter that is wholly about the elder. This preference is arguably driven by some unconscious assumption on the part of the practitioner that the younger companion is better able to communicate the older adult’s need for legal representation.

Not only is this assumption wrong, but it could also hurt the practitioner’s client management efforts and negate any attempt to develop a trusting relationship with the elder. Practitioners should not be complicit in denying their elderly clients the right to advocate for themselves or make decisions about their own affairs, where their capacity to do so is not in question.

Some of the caselaw that could be cited as instances where counsel acted based on negative assumptions made about their elderly clients include Strong v. McCarron, 2003 NBQB 206; Juzumas v. Baron, 2012, ONSC 7220 (CanLII); and Baron v. Mamak, 2018 ONSC 2169 (CanLII).

Aging is a highly individual experience, and it is wrong to generalize about the abilities of a person based on his or her chronological age, any more than it is wrong to make assumptions about someone based on unfounded conjectures. Elderly clients should be treated as individuals, assessed on their own merits instead of presumed group characteristics and offered the same opportunities as everyone else in lawyer/client interactions.

Thanks for reading!

Chigozie Enwereuzo, student-at-law