Category: Elder Law
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.
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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!
Although knowledge and understanding of the issue of elder abuse is growing, I don’t think we have yet arrived at a point where it is openly discussed among different groups of people, or where victims of abuse feel completely comfortable coming forward.
In New Brunswick, the Abuse and Neglect of Older Adults Research Team (ANOART) is conducting research into abuse of older adults, and specifically looking at how abuse affects older men and women differently. This article discusses ANOART’s work and an upcoming conference on this topic.
According to the ANOART, older men more often suffer abuse from their children, but older women are more likely to experience intimate partner violence. This specific type of abuse in relation to older women is not mentioned in discussions of elder abuse as often as other types of abuse, such as financial abuse, or general physical abuse. However, ANOART has found that intimate partner violence against women earlier in life does not stop later in life, but rather evolves.
Although the aggressor of intimate partner violence may be less physically capable of physical abuse as they age, the older woman who is being abused may still feel pressure not to speak out, as to do so may create tension or conflict within their family. Older women may also be financially dependent on their partner, which can be a significant barrier to reaching out.
Services for intimate partner violence are usually focused and targeted at younger women, leaving a gap when it comes to older women. ANOART is working to break the stigma surrounding intimate partner violence against older women, to spread information, and to raise awareness. The hope is that this will assist in reaching out to those who need help more effectively, and make it easier for olden women to seek help.
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Is it possible for today’s seniors to return to their hippie past? For some, plans are in the works.
Youth of the 1960s were a powerful social force that introduced a greater acceptance of community or “commune” living. While the concept never went mainstream, commune-type living is a niche arrangement that takes many forms today, from housing co-operatives in the city, to back-to-the-earth rural compounds, to religious groups seeking to live with their own kind.
If there’s a “hippie” feel to all of this, it’s for good reason. Many of these communities are progressive, socialist in leaning, and seeking a higher ideal in their living. It sure sounds like the 1960s.
Which takes us to commune living for seniors. I heard about this first from a group of men who played hockey together and lived in the same neighbourhood. Recognizing that many would need to “cash out” and sell their homes as they got older, the group lamented the possible loss of their community. One answer was to establish a single housing collective that everyone could move to to maintain their social bonds.
While that idea has never gotten beyond beer talk (at least not yet), I recently learned of another friend who was actively involved in a group that had moved beyond the talking stage and were scouting potential building sites. It may not be for me, but it certainly put the idea on my radar.
The push for senior communes
The attractiveness of senior communes is that it bypasses traditional retirement homes (too institutional) or living alone arrangements (no community, too lonely). A commune brings like-minded people together who can care for each other – and bring in help as needed as group members age.
Of course, there are countless hurdles to such arrangements that range from funding, to legal status, to rules relating to who can live in the complex and what the responsibilities of living there entail.
The Huffington Post ran an article about this recently.
One of the Toronto groups mentioned in the article, Baba Yaga Place, is in the process of making their community living project a reality. It’s modelled on a Paris commune of senior women that is up and running. The Paris commune took 13 years to establish, but Baba Yaga Place is hoping their development stage is quicker. You can follow their progress through their website.
Are you ready to channel your inner-hippie as you enter your senior years? You may soon have options.
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The Estate of Irmgard Burgstaler (disability), 2018 ONSC 472, was a costs decision that arose from an application to pass attorney accounts. Erwin was named as the attorney for property for his mother, Irmgard. Erwin was ordered to pass his accounts and his siblings, Barbara and Peter, objected.
A four-day hearing took place. Erwin was self-represented and his accounts were not in court format pursuant to Rule 74.17 of the Rules of Civil Procedure. Extensive written submissions were also filed by both sides.
Erwin was found to have breached his fiduciary duty to Irmgard when $82,000.00 was taken from Irmgard and applied towards the purchase of a home in Erwin’s name. Erwin also took approximately $44,000.00 from his mother’s accounts to pay his legal fees in the proceeding at issue and the Court found that this expense was not for Irmgard’s benefit. Certain other expenses were ordered to be repay to Irmgard as well as the repayment of $5,000.00 from the sale of Irmgard’s trailer.
Given their success, the Objectors sought full indemnity on a blended basis from Erwin (15%) and the Estate (85%). In reviewing the jurisprudence on costs in estate matters, Justice Shaw found that this case fell within the public policy exemption for due administration of estates and allowed the Objectors’ claim for full indemnity.
That said, Justice Shaw disagreed with the Objectors’ proposed 15/85 split on the basis of the “losers pay” principle in general civil costs. Justice Shaw ordered Erwin to pay the Objectors’ costs on a partial indemnity scale while the Estate was ordered pay the full remaining balance. In this case, partial indemnity appears to be close to 70% of the total claimed based on the fixed amounts that were ordered.
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The Globe and Mail recently published an article on couples that live apart from each other. This particular article focuses on the story of a couple who has never shared a home in the course of their twenty-year relationship. This couple is not alone; approximately 1.9 million unmarried adults in Canada were in an intimate relationship with someone who occupies a separate residence in 2011.
This form of intimate relationships are considered to be a historically new family form. Sociologists have coined this phenomenon as “LAT couples“, i.e. couples that are living apart together.
While the article focuses on couples who are deliberately choosing to live apart, there are also external factors that may prevent a couple from living together (such as immigration or capacity issues where one spouse has greater care needs than the other spouse).
LAT couples raise an interesting question with respect to whether such couples would be considered as a “spouse” within the meaning of Part V of the Succession Law Reform Act for the purposes of dependant’s support. Pursuant to section 57 of the SLRA, the word “spouse” has the same meaning as section 29 of the Family Law Act.
Section 29 of the Family Law Act in turn defines the term spouse as,
- people who are married to each other;
- unmarried people who have cohabited continuously for a period of not less than three years; or
- unmarried people who are in a relationship of permanence if they have children.
Interestingly, the Ontario Court of Appeal has made the following comment in Stephen v. Stawecki, 2006 CanLii 20225:
“the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting”.
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We’re almost 19 years into the new century, so it seems a little late to be talking about the “new” 21st century version of retirement. Or does it?
For those in their 50s or 60s approaching retirement, I don’t think so. If you’re getting close to retirement, you likely have parents who retired in the last century. Pre-internet, pre-smartphone, pre-Amazon delivery on demand. There’s a good chance that at least one parent is still alive, and, like it or not, our “vision” of retirement is shaped by those living it now.
And those living it now made retirement decisions based on life in the 20th century. We may consciously want a different type of retirement, but subconsciously we can be influenced by our parent’s retirement path, whether we know it or not.
So, how could your retirement decisions be different than those of your parents? Here are a few things to consider.
- Shrinking distances: Many retirees want to be in close proximity to their children and grandchildren – and that has influenced many in choosing a home location, even within the same city. But the emergence of advancements like self-driving cars (coming soon), discount airlines, and video calls has made it easier to connect. You may have a much broader radius for home location than you think.
- Enhanced services: In today’s Amazon era, just about anything can be delivered to our doorstep. In Ontario, even the government-controlled liquor store can deliver to your home. This not only decreases your need to be living near certain retail locations, it could allow you to stay in your own home much longer than previous generations. Virtual health care (via text or video conference) has also emerged as a service that brings health care to you rather than the other way around.
- Longevity: Life expectancy gains have slowed a bit recently (as noted by the Canadian Investment Review) but lifespans continue to increase and medical advancements will continue to improve health as we age. For you, it means planning for a longer, healthier life (think 90s, not 80s). This fact can influence many factors, from ability to pursue a second career, to the asset allocation for your retirement savings, to your ability to gift money to family members during your lifetime.
The 21st century has been with us for while – and there are more options out there than you may have realized for your retirement. Make sure your plans reflect it.
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Many of us are familiar with the concept of “elder abuse” or “elder neglect”, however, it is not always clear what that entails. WEL Partners consulted with the Toronto Police Services in developing an information guide for officers, on this very topic. It is now a guide that has been distributed to officers in the field.
Elder abuse/neglect “is any action or inaction, by a person in a position of trust, which causes harm to an older person”, as the guide indicates. As Toronto Police Services officers are often the only point of contact for older adults with the “outside world”, they are also often their only real chance of getting the help they need.
The guide lists various reasons as to why elder abuse/neglect is often under reported by the older adults that are the victims of such treatment:
- dependence on abuser/family member
- rationalization/minimization of the abuse
- denial of the abuse
- lack of recognition of abuse
- physical inability to report abuse
- feelings that they will not be believed
In the absence of victim/witness statements that are often relied on as evidence, the officers investigating these situations should be able to recognize some subtle warning signs of potential abuse of older individuals.
Some common types of abuse are noted as follows:
- Financial abuse
- Physical abuse
- Psychological abuse
The report describes various red flags for each of the categories listed of the common types of abuse. It further describes some additional considerations such as the mental capacity of the senior adult and the following questions to consider in assessing whether capacity is present:
- ability to understand the information needed to make a decision; and
- ability to appreciate the consequences of making, or not making, a decision.
For more information on this valuable resource in assessing whether the circumstances at hand show signs of elder abuse/neglect, see the Elder Abuse & Neglect: A Guide for Police Officers.
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With the NFL season underway as of this past weekend, I thought this week would be an appropriate time to revisit a notion that is maybe as rare in sports as it is in contested estate matters: succeeding on a technicality.
Pursuant to section 15 of Ontario’s Succession Law Reform, a will may be revoked by, among other actions, the execution of a subsequent validly executed will or the destruction of that will by the testator, or by another individual in the presence of the testator acting on the testator’s instructions.
Consider the following scenario: a testator executes a subsequent will with the intention of revoking a prior will and, in the process, destroys the prior will. To the dismay of the testator or his loved ones, the new will is held to be invalid. In the ordinary course, this would lead to an intestacy, as no will would appear to govern – the prior will was expressly revoked and destroyed by the testator, and the subsequent will is not valid.
Rather than leave the testator or his loved ones in limbo, the doctrine of dependent relative revocation steps in to allow the revival of a prior will on a technicality. This concept provides that the revocation of a prior will, as is a common term in many wills, is ultimately conditional on the validity of the subsequent will executed by the testator. If, in the above scenario, the testator revoked and destroyed the prior will with the express intention of replacing it with a subsequent will, such revocation will be conditional on the subsequent will being valid.
Dependent relative revocation is a rare but critical technicality that prevents the absurd result of an intestacy, notwithstanding that a valid will would otherwise have governed but for subsequent execution of an invalid will.
Thanks for reading, and best of luck on your team’s campaign on the gridiron.
The death of the Queen of Soul, Aretha Franklin, on August 16 sent reverberations through Motown and the music industry as a whole. However, equally as shocking to estates law practitioners is the fact that Franklin died intestate, that is, without having executed a valid Last Will and Testament.
Reports have emerged that Franklin died leaving an estate valued at approximately US$80 million. Notwithstanding the insistence of her longtime lawyer to take proper estate planning steps, Franklin’s estate will now likely be distributed in accordance with Michigan intestacy laws rather than in accordance with her wishes. As Franklin died leaving four children and no surviving spouse, a cursory review of applicable authorities in Michigan suggests her estate will be distributed equally amongst her children, as would be the case under Ontario intestate succession laws.
With that said, the fact that Franklin died intestate means that the courts will now be tasked with the appointment of a personal representative to consolidate and distribute the assets of her estate and attend to the payment of any liabilities. In Ontario, where an individual dies intestate, the court is empowered to appoint an Estate Trustee without a Will pursuant to section 29(1) of the Estates Act. While the appointee is entitled to seek professional assistance from lawyers, accountants, and certain other professionals to provide assistance, the administration of an estate, particularly one as large as Franklin’s, can be burdensome especially if the trustee is unsophisticated.
The size of Franklin’s estate will also likely lead to all manner of creditors coming out of the woodwork to stake their claim and create further headaches for the eventual executor. As was the case with other celebrities who died intestate, the chaos that will presumably result is likely to be well-publicized in the media, notwithstanding the wishes of Franklin’s close family. A well-crafted estate plan, including the selection of a willing and competent executor to administer the estate, may very well have allowed the administration of Franklin’s estate to remain largely private. If recent history is any indication, that is no longer likely to be the case.
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