Category: Health / Medical

18 Mar

Aging in Place and Safety Considerations

Nick Esterbauer Elder Law, General Interest, Health / Medical Tags: , , , , 0 Comments

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.

Nick Esterbauer

06 Mar

Live well – just don’t buy the hype

Ian Hull Estate & Trust, Estate Planning, Health / Medical, In the News, Uncategorized 0 Comments

It’s a new year, and we all want to live well and healthy. While our bad habits can get in the way, we generally try to do the right thing.

But what’s right? In 2019, the notion of what’s “right” for our health is getting fuzzy. The reason? We live in an “always on” marketing world, and what can actually help us live well can take a back seat to the shiny new wellness tools that are being thrust upon us.

Think about it. Has there been a major “wellness” finding, backed by science, that’s emerged over the past 20 years? I’m not sure there has been.

Scottish writer, broadcast and family doctor Margaret McCartney lays out the truth we don’t want to hear in this Globe and Mail article. We don’t want to hear it because the advice is boring, obvious and “old news”.

“The truth is that well-being is simple, if not straightforward. Don’t smoke, don’t drink excessively, do exercise you enjoy, eat a Mediterranean-style diet with plenty of fruit and vegetables, interact with people, work at a job and hobbies you like, and don’t be poor.”

These are the evidence-based factors that contribute to health. And while poverty is not a choice for most people, the other factors are. Margaret McCartney’s fear is that we’re becoming so focussed on the shiny new wellness trends (cleanses, colonic irrigation, crystal-infused water, 10,000 steps, this diet, that diet) that we’re missing the bigger picture and the very basic things that can help us stay healthy.

The beginning of a new year is when wellness “hype” is at its peak. My advice? Don’t buy it. By all means, enjoy your Fitbit, your new exercise program, your life without sugar or carbs, or whatever it might be. But don’t ignore the science. None of us are perfect in our health behaviours, but let’s at least strive for what can make a proven, meaningful difference.

 

 

Thanks for reading,
Ian Hull

04 Mar

Alzheimer’s Disease: Using Technology for Treatment

Sydney Osmar Capacity, Elder Law, General Interest, Health / Medical, In the News Tags: 0 Comments

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!

Sydney Osmar

21 Feb

Your Rights in a Long-Term Care Home

Doreen So Elder Law, Ethical Issues, General Interest, Health / Medical Tags: , , 0 Comments

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:

  1. 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;
  2. the right to be protected from abuse;
  3. the right not to be neglected; and
  4. 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!

Doreen So

20 Feb

Do you lie to your doctor?

Ian Hull Estate & Trust, Estate Planning, Health / Medical, Uncategorized Tags: , , , 0 Comments

Your annual physical is approaching, and you’re still averaging three to four alcoholic drinks per night – despite the fact that you told your doctor last year that you were going to cut back.

At your appointment, your doctor reviews her notes and asks how the drinking is going. You surprise yourself by blurting out a complete lie – that you’re now going drink-free every other night and have effectively cut your drinking in half.

Your doctor is pleased, and she begins her examination. In your mind, you move on too, but with one perplexing question: why did you lie?

More common than you think

First, if you do lie to your doctor, you’re not alone. In a recent survey carried out by the University of Utah, about 80% of respondents admitted they lie to – or conceal information from – their doctor on issues that could have health implications. The people most likely to do this were women, younger patients, and those who rated their own health as poor.

The top three reasons?

  1. Not wanting to be judged or lectured
  2. Not wanting to hear how harmful their behaviour is
  3. Not wanting to be embarrassed.

This recent CBC article has more information on the research.

A new approach

Whether you blame this lying on preachy doctors who scare people into not fessing up, or on cowardly patients who don’t own up to their behaviours, one point is crystal clear: lying to your doctor does nothing to advance your health needs.

With more health professionals now available online (either by email, chat or video conference), we now have the tools to move to a more non-judgmental “health coaching” model, with regular check-ins on areas of concern.

For example, a regular smoker will still have an annual physical with their doctor, but rather than dealing with the issue of smoking annually in a single (dreaded) conversation, the doctor diverts the behavioural elements to a nurse practitioner with experience in smoking cessation who provides online coaching on a regular basis. Even if the smoking continues, the nurse practitioner can encourage the person to adopt other behaviours that at least move the needle on health (“hey, how about walking to work twice a week – is that doable?”). And with electronic medical records, they can add any changes to your file, so that your doctor stays in the loop.

In short, we free up doctors to focus on physical health needs at annual physicals (such as blood pressure and heart and lung functions) and rely on encouraging, non-judgmental health coaches to focus on behaviours that may be harming our health (such as risky sex, poor eating, gambling or drug and alcohol issues).

Some of these models exist today in various forms. So, if you’re tired of your own “dance with the truth” at your annual physical, ask your doctor about health coaching alternatives.

 

Thanks for reading.
Ian Hull

13 Feb

Fertilizer for your brain: How to grow your resilience

Suzana Popovic-Montag Estate & Trust, Estate Planning, Health / Medical, In the News, Uncategorized Tags: , , 0 Comments

Let me give you the bad news first: some people are naturally more resilient than others – and life can be tough if your resilience falls in the low end of the range.

Now the good news: your level of resilience isn’t static. You can grow it – with the right brain fertilizer – to become mentally stronger in the face of adversity. This recent New York Times article discusses some of the ways it can be done.

The article is just one of many to explore the link between greater (and lasting) resilience and activities such as mindfulness, social stimulation, and physical activity. It also sets out a great definition of resilience, courtesy of Huda Akil, a neuroscientist at the University of Michigan:

“Active resilience happens when people who are vulnerable find resources to cope with stress and bounce back, and do so in a way that leaves them stronger, ready to handle additional stress, in more adaptive ways.”

In our line of work, the “vulnerable” part mentioned in the above definition is often death, and the estate dispute that follows. From our observations, while death is one of life’s certainties, dealing with it is anything but. In estate disputes, some people are able to cope with the family death and the dispute over assets. Others crumble under the weight of grief and anger. What we’ve seen in many cases is that a higher level of resilience can make a positive difference to outcomes.

How to increase resilience

So, what’s the magic “brain fertilizer” that can increase our resilience? As it turns out, it’s not really magic at all. Better health equals greater resilience, so exercising and good nutrition go a long way to improving resilience. A strong social network also plays a key role. After that, much of it involves shifting our way of thinking – which is where a trained therapist can make a huge difference.

Take a look at the American Psychological Association’s 10 ways to build resilience  and consider the opportunities you may have to bounce back stronger the next time adversity comes your way.

 

Thanks for reading!
Suzana Popovic-Montag

25 Jan

Violence in Ontario’s Nursing Homes

Paul Emile Trudelle Elder Law, Estate & Trust, Estate Planning, Health / Medical, Uncategorized Tags: 0 Comments

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.

Paul Trudelle

21 Jan

Limitation Periods and Special Circumstances: Discoverability under the Trustee Act

Garrett Horrocks Executors and Trustees, Health / Medical, Litigation, Trustees Tags: , , , 0 Comments

Section 38 of Ontario’s Trustee Act provides that an estate trustee may commence or maintain, on behalf of a Deceased individual, an action in tort that could otherwise have been commenced by that individual.  As discussed in related blogs on this section, such actions are ordinarily subject to a stricter limitation period than that of other civil claims.

In typical civil claims, Ontario’s Limitations Act imports a two-year limitation period which begins to run as of the date the cause of action was discovered.  The limitation period under the Trustee Act, however, begins to run as of the Deceased’s date of death and is not subject to this principle of discoverability, unless the Plaintiff can satisfy the Doctrine of Special Circumstances.  The decision in Graham Estate v Southlake Regional Health Centre recently contextualized this Doctrine and, in so doing, suggests that the principle of discoverability will not always be dispensed with.

The Facts

In May 2008, the Deceased in Graham Estate underwent a botched surgical procedure that ultimately gave rise to a claim in medical negligence.  The Deceased subsequently died in February 2009, and a claim was commenced by the Deceased’s Estate in May 2010, well within the two-year limitation period under section 38(3).

As part of this initial claim, the Estate obtained disclosure of relevant medical records relating to the operation.  In or about 2015, more than four years after the limitation period had expired, counsel for the Estate subsequently received an additional unprompted cache of records that had not been previously disclosed.  This new set of records gave rise to a claim against a party who was not a party to the existing litigation.

In February 2017, the Estate subsequently brought a motion seeking to add the Proposed Defendant as a party to the litigation.  At issue in this decision was whether the Estate was out of time as a result of the strict operation of section 38(3) of the Trustee Act.  The Court ultimately held that the Estate ought to succeed on the basis of the Doctrine of Special Circumstances.

Special Circumstances

As the claim against the Proposed Defendant was, on its face, out of time, the Estate argued that the Doctrine of Special Circumstances ought to apply.  This Doctrine is comprised of a two-step test to be satisfied by the Plaintiff:

  1. The Plaintiff must rebut the presumption of prejudice that would result to the party to be added; and
  2. The Plaintiff must satisfy the Court that special circumstances justify the addition of that party.

At the outset, the Court held that the loss of a limitation defence immediately gave rise to a presumption of prejudice in favour of the Proposed Defendant.  However, the Estate identified a number of factors that operated to rebut the presumption of prejudice, notably:

  1. The claims to be made against the Proposed Defendant were identical to those already commenced against the existing Defendants;
  2. The action against the Proposed Defendant was tenable in law; and
  3. There would be no procedural unfairness to the Proposed Defendant if he were added as a party, as no trial date had been set and he would have sufficient time to prepare a defence.

The Court then considered whether there were any equitable special circumstances that merited the addition of the Proposed Defendant as a party.  As above, the Court held that there were, but in so doing, in effect considered factors not unlike the discoverability principle.

Chiefly, the Court noted that the Proposed Defendant’s role in the circumstances giving rise to the initial negligence claim had not become apparent until the limitation period had already expired.  The Court found that the Estate had made efforts to obtained the relevant records well within the limitation period, and that the records implicating the Proposed Defendant had erroneously been omitted.  The Court held that this was not a case in which the Estate was “handicapped by its own inaction.”

While section 38(3) of the Trustee Act on its face imports a strict limitation period, the Graham Estate decision nonetheless suggests that the courts will consider discoverability, among other factors.  That said, this analysis is only engaged if the presumption of prejudice is rebutted.

Thanks for reading.

Garrett Horrocks

17 Jan

Predictive Prowess: Alzheimer’s and Artificial Intelligence

Garrett Horrocks Capacity, Elder Law, General Interest, Health / Medical, In the News Tags: 0 Comments

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.

Garrett Horrocks

Please feel free to check out the following blogs on related topics:

Canadian Alzheimer’s Study Finds Gene That Delays Onset of Alzheimer’s

BikeAround: A View Down Memory Lane for Alzheimer’s Patients

09 Jan

Live longer – unusual tips for keeping the grim reaper at bay

Ian Hull Estate & Trust, Estate Planning, Health / Medical, Trustees, Uncategorized, Wills 0 Comments

We’re all too familiar with the conventional advice for living longer – and the same ol’, same ol’ is being trotted out again by scientists. A new study says that sticking to the following five things can prolong your life expectancy by more than a decade. The five things?

  • Never smoke
  • Maintain a healthy body-mass index
  • Keep up moderate to vigorous exercise
  • Don’t drink too much alcohol
  • Eat a healthy diet

Any surprises? I didn’t think so. It feels predictable and a bit puritan for my tastes, but you can read more about the study here.

Offbeat tips for living longer

I much prefer these five tips for living a long life. The article here outlines 10, but these are the five that caught my eye.

  1. Work hard and be stressed

An 80-year study that began in 1921 followed a group of 1,500 children. Are you ready for this? Children who were happy-go-lucky, carefree, and had a good sense of humor lived shorter lives than those who were more serious, persistent and prudent. As adults, these people were the most involved with and committed to their jobs. Three cheers for the workaholic!

  1. Get rich

Wealth and long, healthy living are positively correlated all around the world, with poorer countries having predictably lower life expectancies. While you don’t need to be rich, money helps. There’s something to be said for playing the lotto.

  1. Learn a second language

Studies have shown that the ability to speak two or more languages significantly slows the onset of dementia and Alzheimer’s, both of which are fatal diseases of old age.

  1. Do good in the world

Many studies have shown that volunteering increases your life expectancy significantly, especially if you’re doing it for purely altruistic reasons.

  1. Live on a mountain

In the US, seven out of ten communities with the greatest longevity are in high-country Colorado counties. And in a mountain town on the Italian island of Sardinia, as many men as women live to be 100. Seek elevation, live longer.

So, if we combine these five tips, you’d live on a mountain working hard at a job that made you rich, while learning a second language and volunteering in your spare time. See you at my 100th birthday party!

Thanks for reading,
Ian Hull 

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