Category: Elder Law
Our blog has previously featured posts about the concept of aging in place. Survey results suggest that the vast majority (93% of respondents aged 65 or older) of Canadians wish to continue living at home for as long as possible as they age. Benefits of aging in place may include lower costs (relative to living in long-term care), increased comfort, slower advancement of memory loss, strengthening of social networks, and continued independence and self-determination.
For many, with old age comes physical limitations that may result in decreased mobility and expose seniors to an increased risk of accidents while living at home, whether they are living with or without the assistance of caregivers or other support, absent sufficient safety measures. We recently discovered a guide to making homes senior-safe, which is available online for free through the Senior Safety Reviews website.
The guide features the following:
- 34 practical tips to assist in preventing falls;
- Measures that may assist in the prevention of theft, elder abuse, burns and fires;
- Technology that can be used to promote at-home safety; and
- Preparing the home for extreme weather.
The guide reports that, notwithstanding the goal of many individuals to remain at home into old age, only 1% of homes are currently equipped to safely facilitate aging in place.
This user-friendly guide may be of assistance to older clients and supportive family members in allowing seniors to safely age in place.
Thank you for reading.
My colleague, Garrett Horrocks, recently blogged on a promising breakthrough in research relating to the early detection of Alzheimer’s disease. The research focused on the use of artificial intelligence to assist in the early detection of the disease.
Last week, I came across an interesting article that discusses a promising breakthrough in the United States in treatment for patients who suffer from Alzheimer’s disease and other degenerative diseases. The fact that treatment options continue to be explored by the science, engineering and medical community is hopeful, in light of last year’s announcement by the world’s largest pharmaceutical company, Pfizer, that it is pulling out of research into Alzheimer’s disease.
The treatment consists of implanting a “pacemaker” into the part of the brain responsible for executive and cognitive functions, such as planning, problem solving and judgment. The article explains that a battery pack is then placed in the chest, which sends electrical currents through the wires in a process called “deep brain stimulation” or DBS.
Studies on the use of the implant have shown that the subject patients’ cognitive and daily functional abilities as a whole declined much more slowly than Alzheimer’s patients in a matched comparison group who were not being treated with DBS.
The article highlights one study participant, Ms. Moore, who, prior to receiving the implant, was unable to cook meals or dress herself without assistance. According to the article, Ms. Moore was very fearful that her disease would take away her ability to play hymns on the piano, however, after two years of receiving DBS, she is still able to continue playing the piano and can now cook meals, select outfits and plan outings independently.
My colleague, Garrett, has pointed out in his recent blog that there could be many ways in which the use of artificial intelligence in the early detection of Alzheimer’s could impact succession and estate planning, such as a predictive diagnosis prompting a testator to take steps to implement an estate plan prior to the loss of capacity.
There is no global definition of capacity, and there are varying degrees of capacity that attract different legal tests. Capacity is decision, time and situation specific, such that a person may have capacity to do certain things, but not others, at different times and under different circumstances.
While the full impact of the use of the implant and DBS in treating Alzheimer’s is not yet clear, should the treatment continue with its successes, it may be possible that people living with Alzheimer’s who do not have testamentary capacity today, may have testamentary capacity sometime in the future.
Thanks for reading!
This week on our podcast Stuart Clark and I discussed the statutory Residents’ Bill of Rights that is within the Long-Term Care Homes Act, 2007.
The importance of this Act should not be overlooked by anyone who is has a loved one in a long-term care home. Section 3 of the Act gives rise to enforceable rights as between the resident and the care home as if they have entered into a contract where the home has agreed to fully respect and promote 27 enumerated residents’ rights.
As an example, the first 4 rights are:
- the right to be treated with courtesy and respect and in a way that fully recognizes the resident’s individuality and respects the resident’s dignity;
- the right to be protected from abuse;
- the right not to be neglected; and
- the right to be properly sheltered, fed, clothed, groomed and cared for in a manner consistent with his or her needs.
While it may be difficult to determine what the Residents’ Bill of Rights means in day-to-day reality, it is a meaningful starting point for any advocate.
An important resource is the government of Ontario’s Guide to the Long-Term Care Homes Act, 2007 and Regulation 79/10, which is available for download here.
Thanks for reading and listening!
In the last couple of decades we have seen a rise in estate, capacity and trust litigation due in large part to the aging demographic. One would think that elder law disputes – disputes involving retirement residences, nursing homes and/or long-term care facilities – would similarly be on the rise. What was highlighted for the attendees at a recent Personal Injury and Elder Law CLE presentation, however, is that there is limited case law in the elder law area. Although the knee-jerk reaction may be to see few cases litigated through to a final hearing as a positive state of affairs, that is not so. Rather, it seems that there are an insufficient number of claims being made, and an even fewer number that are pursued all the way to trial.
The panel sees ageism as contributing to this set of circumstances. Damage awards are typically lower for the elderly, the rationale seemingly that they have already lived most of their lives and are going to die anyway. The converse “Golden Years Doctrine” was cited as a means to argue for the better protection of elderly plaintiffs, grounded in the argument that the elderly suffer more and are more severely impacted from an injury than their younger counterparts.
Taking such cases to trial and increasing awareness (e.g. media coverage) is a way to create progress and change in this area of the law. The panel advocated for this approach, as well as stressed the importance of electing to have such cases heard in front of a jury, who may be more willing to award larger sums to litigants.
If this advice is followed, we can hope to see more decisions that can build upon the few noted cases in the area (this article references some of them), and more just outcomes for the elderly, their families and/or their estates.
Thanks for reading and have a great day,
Ontario’s nursing homes can be a very violent place.
According to a report of public health watchdog, Ontario Health Coalition, reported incidents of resident-on-resident abuse doubled from 1,580 incidents in 2011 to 3,238 in 2016. At least 29 residents were killed by fellow residents in the past 6 years. Those numbers may be under-reported. In addition, a number of deaths have been noted that are not deemed homicides, but occur shortly after an incident of violence.
The numbers are particularly significant, considering that there are less than 80,000 people living in long-term care in Ontario.
Incidents usually involve at least one patient with dementia. Symptoms of dementia can often include aggression.
The report does not address staff-on-resident abuse. According to a CBC Martetplace investigation, an average of 6 seniors are abused by their caregiver every day. In 2016, there were 2,198 reported incidents of staff-on-resident abuse.
According to Natalie Mehra, Executive Director of Ontario Health Coalition, “It’s a level of violence that would be unacceptable anywhere in our society and certainly should not be tolerated for the frail and vulnerable elderly. Her organization encourages increased staffing levels and training. “We don’t think it’s in the public interest to scare people away from long-term care. We think that it’s in the public interest that this has to be exposed so it can be dealt with and fixed.”
Have a great weekend.
A recent study published by the Department of Radiology and Biomedical Imaging at the University of California at San Francisco represents a promising breakthrough in research relating to early detection of Alzheimer’s disease. At the core of the study, however, is a familiar yet unlikely trend: artificial intelligence.
The research team developed an algorithm to read and interpret PET scan images with a particular emphasis on monitoring and detecting changes in glucose uptake over extended periods of time. Glucose monitoring has historically been an important predictive factor in formulating a diagnosis of Alzheimer’s. Healthy cells generally display high levels of glucose uptake, indicative of robust cell activity. Conversely, lower glucose uptake suggests cell inactivity or death, for example, as a result of Alzheimer’s.
The slow, progressive nature of Alzheimer’s has historically rendered it difficult for radiologists to observe the subtle changes in glucose levels until symptoms had reached a stage at which they were no longer meaningfully reversible. The team at UCSF tailored the algorithm to detect subtle features that were imperceptible to the human eye.
To achieve this, the algorithm was fed thousands of PET scan images from thousands of patients at all stages of cognitive impairment, from no impairment through to late-stage Alzheimer’s. Over time, the algorithm learned to discern between the particular features of a given scan which were of assistance in predicting the eventual onset of Alzheimer’s and those which were not. At the conclusion of the study, the algorithm had correctly predicted the onset of Alzheimer’s in more than 92% of cases. Importantly, the algorithm was able to predict the onset of Alzheimer’s, on average, more than six years before the symptoms constituting a typical diagnosis had manifested.
Leaving aside the obvious benefits relating to treatment and reversibility, early detection of Alzheimer’s could stand to have numerous applications in the context of succession and estate planning. For example, a predictive diagnosis could spur a testator to take steps to implement a proper estate plan well before his or her capacity to do so could become a concern. In turn, the testator would have the security that their plan of succession would be carried out according to his or her instructions, reducing the risk of contentious post-death litigation.
Thanks for reading.
Please feel free to check out the following blogs on related topics:
Humans are social beings. Some of us enjoy interacting with others, with animals, with virtual reality experiences, or all of the above!
I read a heartwarming story recently from the New York Times which featured a robot caregiver for the elderly named Zora. Zora was introduced to a nursing facility outside of Paris and she was rather well received.
The residents of this particular facility have dementia and other conditions that require twenty-four hour care. Zora can converse with the residents through the assistance of a nurse who types on a laptop for the robot to speak. Many residents formed an attachment to Zora and even treated the robot like a baby.
According to the makers of the Zora robot, it is the first robot in the world that takes care of people.
While a robot may not be able to replace the tender, love, and care of one’s family, it is easy to believe that a robot can make any one’s imagination wander, stimulate play, and even be a friend.
I say that as someone with very fond memories of Toy Story. The first Toy Story came out in 1995 and Toy Story 4 is about to be released in 2019 if you want to check out the trailer here.
Thanks for reading!
By now, many of you have had a phone call from the “Canada Revenue Agency” informing you that you owe money, or that a lawsuit or collection process has begun. It’s a scam that’s obvious to most of us – and we hang up and don’t give it a second thought.
But in a small minority of cases, the scam works, and Canadians have lost thousands of dollars in the process. It’s not just seniors – many middle-aged adults have been victims as well.
Which brings me to a key point: if brazen scams can work on those in the prime of life, how vulnerable are seniors who may be suffering from both physical and mental frailties?
Know what’s out there
The Canadian government’s Anti-Fraud Centre has a website that outlines four common fraud schemes that target seniors, and steps to protect them.
Here’s an overview of the four types:
- Prize winner: Canadian seniors receive notice (mail, phone, or email) that they’re the winner of a large lottery or sweepstake. A request is made for money to cover costs in securing the winnings.
- Family emergencies: Seniors receive a call from someone claiming to be a family member or a close friend. They describe an urgent situation that requires money.
- Service scams: There are many types, but one of the most common involves a phone call from someone claiming to be from Microsoft or Windows who has detected a virus in the victim’s computer, with money needed to make repairs.
- Friendship/romance: Scammers can spend months grooming a victim into a friend or romantic relationship, either online or in person. Eventually, a request for money is made.
The bottom line is that scams come in many forms. While seniors can most definitely learn to protect themselves, this becomes much harder if there’s been a decline in mental abilities. The best way to protect elderly parents or other seniors is to check in with them every few days to probe for any unusual actions. You can also ask the individual to follow one simple rule: check with me first (or with another son or daughter) before committing money to anything. It’s a great delay tactic that will often stop a scam in its tracks.
Savvy senior? Take the quiz
This short 10-question quiz is designed to test a senior’s ability to spot online scams, but it’s a great test for anyone to take. See how you do, then try it out with a senior in your life.
Thanks for reading … Enjoy your day,
One of the major facets underpinning the principles of fundamental justice in Canada is ensuring all parties to a litigation have a voice. The ability of the judicial system to satisfy this burden is often rendered more challenging when the capacity of one of the parties is a central issue in a given proceeding. The recent decision of the Ontario Superior Court of Justice in Sylvester v Britton, 2018 ONSC 6620, provides clarity in respect of the duties and obligations of counsel who are appointed to navigate these issues.
In Sylvester, the Applicant brought an application seeking to be appointed as guardian of property and personal care for her mother, Marjorie. Marjorie had previously appointed two of her sons as her attorneys for property and personal care pursuant to validly-executed powers of attorney.
On consent of all parties, the Public Guardian and Trustee arranged to have a lawyer, Clarke Melville, act for Marjorie on the application in accordance with section 3 of Ontario’s Substitute Decisions Act. Section 3 of the SDA provides that, where the capacity of a person is at issue in a proceeding, that person will be deemed to have the capacity to instruct counsel for the purposes of that proceeding. Accordingly, the Court deemed Marjorie to have the capacity to give instructions to Mr. Melville on the application.
The Applicant disputed this presumption of capacity. She brought a motion seeking, amongst other relief, Mr. Melville’s removal as Marjorie’s section 3 counsel and a declaration that Marjorie was not capable of instructing counsel.
The Applicant’s position on the motion was largely premised on earlier findings of Marjorie’s incapacity. Capacity assessments performed several years earlier had revealed that Marjorie was not capable of managing her property or her personal care. At common law, the test for capacity to manage property and personal care is generally more onerous than the test for capacity to instruct counsel. The Applicant took the position that a finding of incapacity to manage property and personal care was sufficient to establish a lack of capacity to instruct counsel.
The Court disagreed and, in its reasons, highlighted several key points that clarify the role of section 3 counsel in the court process. The purpose of the SDA and of section 3 in particular is to protect vulnerable individuals and to allow them to provide input, to the extent possible, on matters that impact their interests.
However, the Court also stressed that the Rules of Professional Conduct govern all solicitor-client relationships, including relations arising under section 3. Section 3 counsel must carry out all of the duties and obligations to the Court and to the client that other counsel must observe, regardless of the particular vulnerabilities of their client. All counsel have an obligation to canvas the wishes or instructions of their client and to advance the client’s interests. The role of section 3 counsel differs only insofar as it is potentially more likely that he or she will be required to advise the Court if, at any point, counsel no longer believes the client has the capacity to give instructions.
This final point is the salient point that governed the Court’s decision to deny the Applicant’s motion. The Court ultimately held that significant deference ought to be granted to section 3 counsel in assessing a client’s capacity to give instructions. The Rules of Professional Conduct properly govern a lawyer’s duty to all clients and to the Court. As such, no individual will be better positioned to judge an incapable person’s capacity to give instructions than the person to whom the instructions would ordinarily be given.
Accordingly, the Court will only interfere if it is apparent that the client is not able to give instructions and where it is clear that counsel has “strayed from his or her obligations to the client and to the Court.” In all other circumstances, the Court will presume that counsel is acting with the integrity of the court process in mind.
Thanks for reading.
It’s a situation shared by many – you have a single elderly parent living alone. They’ve always been able to handle their day-to-day needs, with the occasional helping hand from family members. But something doesn’t seem right.
It often starts with your intuition. If you visit your parent regularly, it can be difficult to spot the signs of decline because these can happen gradually. They begin losing weight due to improper eating, or they start letting their appearance slide, or personal finance obligations – like credit card payments – are sometimes missed. Before you know it, those “something doesn’t seem right” thoughts become “something isn’t right” certainty.
Of course, there are more dramatic signs of not coping, everything from confused wandering, to car accidents, to kitchen fires. This article provides a great overview of 12 signs to look for in determining whether an elderly parent needs help.
While you can’t stop the aging process, you can take a few small steps now – while your parent is healthy and well – that can help ease the burden later if help is needed. Here are three to consider.
- Start the conversation: People in their 60s and 70s are usually active and independent. But if your parent has reached age 80, a conversation with your parent about “what if” is highly advisable, despite any discomfort in raising the topic. Are they open to move into a retirement home when the time comes? Would they prefer home-based care? Would they consider down-sizing now, rather than later? Your parent may not be in a position to express their thoughts in two or three years. By having the conversation now, you can factor your parent’s wishes into future decisions.
- Get a financial opinion: Seek the help of a financial advisor (yours or your parent’s) to determine what type of help is affordable if your parent is no longer able to care for themselves. Ideally, your parent should be involved in these conversations. This information will give both of you an idea of what care options are feasible in the future.
- Make a retirement home visit: If a retirement home is a possible future option, a tour of one or two homes is a great way to familiarize your parent with retirement home living. Even if your parent is years away from a move, the ideal time to tour places is when there’s no pressure or crisis. If a need to move arises later, your parent already has some comfort level with the options available.
This short article – although written by a retirement home provider – offers some great tips for starting a conversation.
Thank you for reading and Happy Halloween!