Category: Elder Law
On December 4, 2019, the Economic and Community Development Committee considered a proposal to improve senior services and long-term care in the city of Toronto, which is set to be considered by City Council on December 17, 2019.
The proposal is based on a Report from the Interim General Manager, Seniors Services and Long-Term Care which recommends ways to improve life for residents in long-term care facilities. The proposal sheds light on certain shortcomings of the current institutional model of long-term care facilities. Under the current system, after tending to basic care needs such as eating, bathing, and safety, and ensuring that they have met government mandated reporting requirements, staff are left with little free time. As a result, residents spend the majority of their days alone, without any form of genuine human interaction or purpose.
The proposal will revamp and hopefully reinvigorate the city’s 10 long term care homes by shifting the model of care to one that is emotion-centred. The key components of an emotion-centred approach to care would see increased staffing (with up to 281 new staff by 2025), more hours of care per resident per day, increased funding from the provincial government, and improved bedding.
More importantly, an emotion-centred approach emphasizes the emotional needs of residents, understanding that human connection leads to enjoyment of life. The new approach is based wholly and substantively on an understanding of ageing, equity, diversity and intersectionality.
If adopted, the city of Toronto will be the first to integrate diversity, inclusion and equity directly and comprehensively into an emotion-centred approach to care framework.
If you are interested in learning more, read this article from the Toronto Star. I also recommend reading this 2018 Toronto Star series called “The Fix” about a bold initiative to change care in a dementia unit in a Peel nursing home.
Thanks for reading!
Earlier this year, Ian M. Hull, Suzana Popovic-Montag, and I were pleased to co-author the Canada Chapter of the 2019 Chambers & Partners Global Private Wealth Guide for the third consecutive year.
The guide provides an overview of the law as it relates to a number of issues relevant to financial planning and estate planning in jurisdictions throughout the world. Specifically, the following topics are covered (among others):
- tax regimes;
- succession laws;
- laws relating to the transfer of digital assets and other assets;
- family business planning;
- wealth disputes;
- elder law; and
- obligations of fiduciaries.
With chapters summarizing the state of the law and related trends in 34 countries, including the United Kingdom, United States, Switzerland, France, and Israel, the guide can be a great resource to be used as a starting point when assisting clients who have assets (or are beneficiaries of assets) in other jurisdictions.
A complete electronic copy of the 2019 Chambers & Partners Global Private Wealth Guide is available here: https://practiceguides.chambers.com/practice-guides/private-wealth-2019. The online version includes a “compare locations” feature, which allows readers to quickly review differences between two or more jurisdictions.
Thank you for reading.
A few months ago, I blogged about a New Yorker article that discussed the challenges of living well now that people are living longer than ever, and what is being done about it. One of the topics addressed was the difficulty of marketing certain products that are aimed at older adults, mainly because we do not want to buy something that will remind us that we are aging or old.
A recent article in MIT Technology Review asked an interesting, and related, question: Why are products for older people so ugly?
One quote in particular, I think, sums up the issue quite well:
Presented with products that are ‘brown, beige, and boring,’ many older people will forgo convenience for dignity.
Unfortunately, most individuals and companies who design products for older people seem to make assumptions about what older people are looking for in a product. For instance, they may assume that an older person cares more about functionality than aesthetics. In many cases this is not necessarily true, and the older person in question will likely end up feeling that the product ultimately draws unwanted attention to their age and particular needs.
The article discusses the idea that older people should be more directly involved in conversations about how to design the products that they need, or that are aimed at them. This would, of course, be helpful to those designing and using the products, but would also allow older people who may feel that they are no longer seen as contributing to society, do something that they may find useful and fulfilling.
The “Longevity Explorers” consulting group was created around this concept. It started with a group of older people meeting to discuss aging in order to pinpoint the areas that product developers should focus on. Participants can suggest topics they want to cover, and there is also a moderator who will introduce a main discussion topic. In 2017, a separate branch of the group was introduced to serve as paid focus groups for companies. Each “Explorer” receives a fee for participating in the focus group, and in exchange, the company gets feedback from their targeted customers (namely, seniors) about a product that they are designing.
This seems like a much-needed shift in how we think about products for older people. If we can focus on creating products that not only address the needs of older people, but are designed in a way that will make seniors want to use the product, both the companies selling the products, and importantly, the older people using them, will benefit.
Thanks for reading,
You may also enjoy these other blog posts:
Financial elder abuse can take many forms. We have previously blogged about elder abuse by family members, as well as the role technology plays in the increase in phone and email scams affected seniors.
This Global News article tells the story of an elderly couple who claim they were pressured into selling their house.
The couple had lived in their home in Woodbridge, Ontario, for over 20 years, and had no plans to move or sell their home. Although the house was not for sale, in February 2012, a real estate agent showed up at the couple’s door with an offer to purchase the home. There is some dispute about the subsequent interactions between the couple and the agent, but ultimately, a contract was signed for the sale of the couple’s home. After seeking advice from a lawyer, the couple refused to close on the sale of the home. The buyer brought a claim against the couple to enforce the contract, and it appears from the article that, as of October 2018, the litigation remained ongoing.
The couple say that, initially they ignored the offer to purchase that had been delivered by the real estate agent. The husband told his daughter that he had asked the agent several times to give him a few days to consult with his children before finalizing any deal. On the other hand, the agent says that negotiations occurred over a three-day period, and the couple had several days to consider the offer and consult with their children.
There is also a question of whether the couple was capable of entering into the sale transaction. The couple’s daughter says that the wife was 84 years old at the time and suffering from early onset dementia, and that the husband was not fluent in English.
The couple’s daughter believes that her parents were pressured into agreeing to sell their home by the agent. The article mentions that a similar situation could come up with any door-to-door salesperson, as elderly people are generally home during the day, and will typically open their door and talk to people. Unfortunately, there isn’t really a simple solution if an older adult is pressured into an agreement. If the other party to the agreement is intent on enforcing it, the senior may need to resort to failing to comply with the terms of the contract, which is likely to lead to litigation. That can be a stressful and time-consuming endeavour—the couple in the article are apparently still involved in litigation years after the contract was entered into.
Incidents like these are an unfortunate reminder that elder abuse continues to be an issue, and that it can take many forms. That being said, with increased attention will come increased awareness, which, I hope, will lead to the prevention or avoidance of similar issues in the future.
Thanks for reading,
Other blog posts that may be of interest:
On today’s podcast, Natalia Angelini and Rebecca Rauws discuss elder law issues, including the increasing prevalence of such issues in our practice, the different viewpoints on damages, and the need for more case law in this area.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
In September 2016, Elizabeth Wettlaufer quit her nursing job and checked herself into the Centre for Addiction and Mental health in Toronto where she subsequently confessed to harming and killing a number of people during the last nine years of her nursing practice. Wettlaufer’s choice method of harm was injecting her victims with insulin overdoses. The majority of these incidents took place in licenced, regulated long-term care homes in southwestern Ontario. Wettlaufer is, by all accounts, a healthcare serial killer.
In June 2017, Wettlaufer was convicted of eight counts of first-degree murder, four counts of attempted murder, and two counts of aggravated assault. She was sentenced to life in prison with no chance of parole for 25 years.
But the story did not end there. Wettlaufer’s crimes spurred public outrage and debate over the quality of Ontario’s long-term care system and the safety of those who rely on it. One of the many troubling questions that arose was: how could a registered nurse commit such serious crimes in regulated healthcare facilities for years without getting caught? To find answers and figure out how to prevent similar tragedies from occurring in the future, the Long-Term Care Homes Public Inquiry was launched (the “Public Inquiry”).
The Public Inquiry concluded on July 31, 2019 when the Honourable Eileen E. Gillese, Commissioner of the Public Inquiry, released her four-volume final Report of the Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System (the “Report”).
The Report makes three chief findings. First, the harmful acts committed by Elizabeth Wettlaufer would not have been discovered if not for her confession. Second, systemic vulnerabilities in the long-term care system are to blame for the harms that took place, rather than any individual or organization operating within the system. Third, the long-term care system is strained but has the robust regulatory regime and workforce needed to address existing systemic issues that have been exposed by the Public Inquiry.
Though I write at the risk of fear-mongering, that is by no means my intent. Indeed, I firmly believe that the large majority of healthcare providers uphold the ideals of patient or resident-centred care. The Report, in my view, is noteworthy for the bright light it shines on the potential for a nurse or other healthcare professional to intentionally harm those under their care. As astutely stated in the Report, “We can prevent, deter, and detect only matters of which we are aware” (volume 1, page 18).
It is prudent for residents or their substitute decision-makers to be on high alert for signs of abuse by staff in long-term care homes and issue complaints where appropriate. The Long-Term Care Homes Act , the statute which governs Ontario’s long-term care homes, contains several provisions concerning residents’ rights and the complaints process that can be of assistance. The takeaway is that anyone can be a potential advocate for a vulnerable resident of a long-term care home.
Thanks for reading,
Arielle Di Iulio
There are constantly new studies suggesting different ways to slow both physical and mental aging. This month alone, the news has featured research suggesting the following:
- Aging with pets in place can increase life satisfaction overall, and research suggests that pets may be associated not only with less loneliness, stronger social support systems, and increased participation in the community, but also better cardiovascular health, lower cholesterol, and lower blood pressure.
- A study from the University of Leeds suggests that tickling may slow down aging. The study involved the use of electrodes on the participants’ ears to simulate a tickle-like tingling sensation. Two weeks of 15-minute daily tickling therapy were believed to improve the balance of the autonomic nervous system.
- People who are optimistic may live longer. For groups of both women and men, those who were optimistic long-term had a better chance of living to age 85 (and beyond). Optimism has been linked with goal-setting and healthier habits and, accordingly, fewer optimistic people are believe to die prematurely from stroke, heart disease, or cancer.
- Consistent with previous research, a new study by the University of Iowa has linked exercise to a healthy aging brain. Even a single bout of exercise was considered to improve cognitive function and working memory in older participants.
While there may be nothing to prevent aging altogether and/or to totally eliminate the risk of suffering from Alzheimer’s disease or other age-related cognitive decline (absent any major scientific breakthrough), in general, taking health and wellness more seriously from an earlier age may improve quality of life and independence down the road.
Thank you for reading.
Other blog posts that may be of interest:
There was a recent decision of the Ontario Superior Court of Justice on the issue of costs in a contested guardianship proceeding. Rather unusually, the endorsement in Howard Johnson v. Howard, 2019 ONSC 4643, dealt with the issue of costs after the parties have resolved the main dispute on consent.
In this case, there were two competing guardianship applications over Elizabeth. The applicants on the one hand were Elizabeth’s daughter and son, Marjorie and Griffin, and on the other hand, Elizabeth’s other son, Jon. All three of Elizabeth’s children were of the view that their mother was in need of a substitute decision maker for both the management of her property and for personal care.
While the endorsement does not specify who the competing applicants were seeking to appoint as Elizabeth’s guardian, the parties eventually settled on the appointment of CIBC Trust Corporation as Elizabeth’s guardian of property and all three children as Elizabeth’s guardians of personal care. On the issue of costs, Marjorie and Griffin sought full indemnity costs from Jon while Jon sought substantial indemnity costs from Majorie and Griffin or, in any event, that he be indemnified by Elizabeth for any amounts not recovered from his siblings.
Pursuant to section 3 of the Substitute Decisions Act, 1992, Elizabeth was represented by counsel throughout the proceeding and on the issue of costs. Submissions were made on Elizabeth’s behalf that she should not have to pay costs of the other parties or the outstanding balance of an invoice that was purportedly incurred by Elizabeth in a joint retainer with Jon.
The Court in this instance considered the modern approach to costs in estate litigation as set out in McDougald Estate v. Gooderham, 2005 CanLII 21091 (ON CA), with respect to Jon’s claim that Elizabeth ought to be responsible, at least in part, for his costs. The court relied on D.M. Brown J.’s (as he was then) comments that the discipline imposed by the “loser-pays” approach to estate litigation applies with equal force to matters involving incapable persons citing Fiacco v. Lombardi, 2009 CanLII 46170 (ON SC). Only costs incurred for the best interests of the incapable person could be justified as costs payable from the incapable’s assets.
In this case, the competing applications of the siblings were found to contain a number of ancillary issues beyond that of the appointment of a substitute decision maker for Elizabeth. The Court was ultimately unable to see how Elizabeth would have derived any benefit from her children’s disputes. Therefore, the children were all ordered to bear their own costs. There was also no clear benefit to Elizabeth from the invoice that was issued to her prior to the appointment of section 3 counsel and Jon was ultimately left to pay that balance.
At the end of the day, the only costs borne by Elizabeth, as the incapable person subject to two competing guardianship applications, were the costs of section 3 counsel pursuant to the section 3(2) of the SDA.
Here is a Bon Appetit recipe for a frozen margarita pie that we could all benefit from.
A recent decision of the Supreme Court of British Columbia examined the tension between a testator’s moral obligation, if any, to provide for a child under a will, and that testator’s freedom to dispose of his or her estate as that testator sees fit.
The facts in Grewal v Litt are relatively simple and were generally not in dispute between the parties. The applicants were the four daughters of the two testators whose wills were under scrutiny. The respondents were the testators’ two sons. The testators had died leaving mirror wills, each benefitting one another. Upon the death of the survivor, the wills left modest bequests of cash to each of the daughters, while the two brothers shared the residue.
The combined values of the estates exceeded $9 million. Pursuant to the terms of the wills, each daughter was to receive a bequest of $150,000, or about 1.5% of the total value of the two estates. The two brothers were the sole residuary beneficiaries and stood to split the remaining 94%.
The daughters brought an application to vary the wills under section 60 of British Columbia’s Wills, Estates and Succession Act (the “WESA”) to provide an equal distribution of the residue between all six children. The application was brought on the basis that the testators had purportedly discriminated against the applicant daughters based on their adherence to traditional cultural values. The respondent brothers agreed that the terms of the wills did not fulfill the testators’ moral obligations to the daughters, but did not agree that the solution was an equal distribution of the residue.
The court grappled with the tension between the need to make proper provision for the daughters versus recognizing the testators’ broad testamentary freedom to dispose of their estate as they see fit. Ultimately, the court found substantially in favour of the daughters and held that each daughter would be entitled to a 15% share in the residue, with the respondent brothers each receiving a 20% share.
In reaching that decision, the court first looked at section 60 of the WESA and noted that the value of the estates was large enough that the court could both consider the parents’ testamentary autonomy in favouring the respondent brothers while nonetheless making adequate provision for the applicant daughters.
The application judge then referred to numerous prior decisions in which the court had ordered variations of wills when unequal testamentary distributions were made by testators who believed themselves to be bound by cultural norms. Finally, the judge noted that the significant contributions by the daughters to the testators during the last few years of their lives, which were not replicated by the brothers, enhanced the testators’ moral obligation to provide for the daughters.
This case’s potential impact in Ontario remains to be seen, although it is important to the note that Ontario lacks a statute with as broad a mandate for varying testamentary documents as the WESA. Part V Ontario’s Succession Law Reform Act is a comparable parallel that allows a court to make adequate provision for a testator’s dependants, but that language is less broad than the language of the WESA. In any event, the Court of Appeal for Ontario held in Spence v BMO Trust Company that absent any requirement by a testator to adequately provide for a dependant, the testator has broad testamentary freedom.
Thanks for reading.
Our readers will all be familiar of the issue of elder abuse, and the various forms that it can take. It is also well-known that elder abuse if underreported, giving rise to challenges in determining just how common it is and how incidence rates may be fluctuating within the context of our aging population.
A new study by Comparitech explores the issue of the underreporting of elder abuse and extrapolates reported incidents and studies regarding underreporting to gain an appreciation of how commonly it is actually occurring in the United States. Comparitech estimates that at least 5 million cases of financial elder abuse occur every year in the United States alone. While damages of $1.17 billion are reported, it is believed that the actual losses to seniors total $27.4 billion.
Technology also appears to be playing a role in increasing rates of elder abuse. Comparitech found that 1 in 10 seniors were victims of elder abuse and that the use of debit cards have become the most common tool in defrauding them of their funds. With phone and email scams on the rise in recent years, underreporting is anticipated to become a growing problem while incidence rates continue to increase without any way to determine exactly how many seniors are affected.
Thank you for reading.
Other blog posts that you may enjoy reading: