Category: Health / Medical

15 Nov

Section 3 Counsel: Duties to the Client and the Court in Sylvester v Britton

Garrett Horrocks Capacity, Elder Law, Ethical Issues, Health / Medical, Power of Attorney 0 Comments

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.

Garrett Horrocks

14 Nov

Apples to apples – the Mac is under attack

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

I’ve always loved a fresh apple – so this article in the National Post about the birthplace of the McIntosh apple immediately caught my eye.

It seems that the original farm in Dundela, Ontario, where the McIntosh was discovered in 1811, has fallen into disrepair (Dundela is north of the St. Lawrence River between Kingston and Cornwall).

It also seems that the popularity of the McIntosh apple is in decline. If you regularly visit the apple section of your local grocery store, this will come as no surprise. Tastes are changing, and people are looking for less “tang” and more “crunchy and sweet”. One grower predicts that McIntosh apples will, for the most part, disappear from the marketplace in his lifetime.

While there’s a great story behind the rise of the McIntosh apple, Heritage Canada doesn’t have the funds to buy the farm and preserve the story. There’s a good chance that younger generations will know nothing about this apple and never taste one, even though the McIntosh apple became a 20th century North American success (and even had a line of computers named after it).

Should we care?

I grew up eating McIntosh apples. I bought them from Boy Scouts on their apple day and received them as a Halloween treat (reluctantly). They’re truly part of my history. But so are Eaton’s, Sam the Record Man, and those Lola triangle ice treats (created in the late 1950s but gone by the 1980s). Time and tastes move on. Maybe we should worry less about shrines to the past and simply enjoy what we have while we have it and look forward to the next great thing when the time is up.

In the meantime, I’ll continue to enjoy some uniquely Canadian traditions, like Hockey Night in Canada, Caesar cocktails, butter tarts, Victoria Day fireworks, and Crispy Crunch chocolate bars (in no particular order).

Thanks for reading!
Ian Hull 

31 Oct

Does your elderly parent need help?

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

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.

Advance planning

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.

  1. 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.
  2. 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.
  3. 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!
Ian Hull

26 Oct

“Tennessee doctor borrowed $300K from a patient, then diagnosed her with dementia”

Paul Emile Trudelle Estate & Trust, Estate Planning, Health / Medical, In the News, Uncategorized Tags: , , 0 Comments

This is an actual headline from an October 23, 2018 post on “Tennessean”, which is part of the USA Today Network.

Apparently, the doctor borrowed $300,000 some time ago from a long-time patient who was also a friend and the administrator at the doctor’s clinic. When the patient later requested repayment, the doctor diagnosed her with dementia in an apparent attempt to escape the debt. The doctor forwarded the diagnosis to the patient’s daughter, who in turn forwarded the letter to the patient’s financial company. The patient was then denied access to her assets.

The doctor later admitted that the diagnosis of dementia was based solely “on observation”, and that she did not use any testing methods or obtain a second opinion.

A later assessment by a psychologist stated that the patient had no indication of dementia.

As a result of disciplinary action that was brought against her, the doctor voluntarily retired her licence.

In an interview with the Tennessean, the doctor said that she was “set up” by a vindictive patient, and that she retired after state attorneys “presented her with an unwinnable legal case.” The doctor said that she borrowed the money 20 years ago and that she had been making repayments.

The doctor said that the patient did in fact “exhibit erratic behavior and signs of memory loss”. She said that the patient “later misled the psychologist so the dementia diagnosis would not be confirmed.”

What is not clear from the report is how the doctor could have expected to avoid the debt by having the patient declared incapable.  Surely the patient’s daughter or someone else on her behalf could have taken steps to enforce the debt. That is, however, assuming that they knew about it.

A takeaway is to ensure that your legal and financial affairs are in order and are well documented, so that someone can step in and protect your assets and enforce your rights in the event that you are found to be incapable, legitimately or not.

Another takeaway may be to be careful when getting medical assistance in Tennessee. The headline to another story posted October 11, 2018 reads: “This pain clinic nurse gave a patient 51 pills a day. And she kept her licence.” (For the record, the pills consisted of 32 tablets of methadone, 8 Roxicodone, 4 Soma, and 6 Xanax throughout the day, topped off with 1 Ambien.)

 

Have a great weekend.

Paul Trudelle

17 Oct

Why staying well can be a living hell

Ian Hull Estate & Trust, Estate Planning, Health / Medical, In the News, Uncategorized Tags: , , , 1 Comment

Have you followed the wellness industry lately? The New York Times recently published a lengthy feature on Gwyneth Paltrow and her wellness company Goop. In it, the author describes a number of the “therapies” she learned about in the course of interviewing Paltrow and writing the article.

These ranged from more conventional wellness tips (healthy eating, cleanses, meditation) to far more radical ideas (bee-sting therapy, psychic vampire repellent, and jade eggs for vaginal therapies). It’s a fascinating (and somewhat disturbing) article. You can read it here.

Paltrow is by no means the only wellness guru out there promoting what she calls “radical wellness.” There are many – with many products and treatments to purchase if you are willing to give them a try. And despite the lack of scientific evidence that these treatments work (one woman recently died from bee-sting therapy) and the resounding criticism of many alternative treatments from the medical community, alternative wellness is flourishing.

Why is that? I can see three reasons:

  1. Social media makes it easier than ever for wellness “ideas” to go viral;
  2. Many people are suffering from a mental or physical condition that conventional therapies haven’t cured – and are desperate for answers; and
  3. The placebo effect results in many claims that a treatment “works” – and those good news stories are fed into the social media cycle.

Of course, some therapies may in fact work – but how can you tell truth from fiction? While there are hundreds of scientific studies that prove the health benefits of things like exercise, healthy eating and meditation, alternative therapies typically have only anecdotal evidence to back them up.

All to say, before you wade into a swarm of bees, get the facts first. This U.S. website lists five reliable online medical resources (such as the Mayo Clinic) that you can trust for information.

Thanks for reading!
Ian Hull

22 Aug

Life-saving drugs for free? It could happen

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

The federal government might be getting into the prescription drug business – and it could be a life-saver for many.

In its 2018 budget, the federal government established an Advisory Council on the Implementation of National Pharmacare (prescription drug coverage). The Council’s purpose is to advise the government on the best approach to implementing a national pharmacare program.

Change could be coming
The federal government recently released a very readable discussion paper to start the ball rolling.

What would national pharmacare look like? It’s still early days – and we don’t know if the government will take over drug coverage for all Canadians, whether private insurers will continue offering workplace coverage, or whether a hybrid system will emerge.

But one of the drug coverage “hot potatoes” that could land in the government’s lap is coverage for high-cost specialty drugs for rare diseases, often called “orphan drugs.” Some of these drug treatments are truly life-saving, but costs for some are hundreds of thousands of dollars. The question is, who should pay?

Will government step up?
According to the National Post, Canada is one of the only developed countries without a regulatory framework for rare disease drugs, although previous governments have taken steps to address the issue.

The issue is that with greater numbers of highly effective, high-cost drugs being brought to market each year, access and affordability are a greater concern than ever. And as the baby boom bulge makes its way into old age, we know there will be no shortage of demand.

While the federal government is studying a potential new model for all prescription medications, a change relating to rare-disease drugs is the one that could truly be a life-saver.

Thanks for reading … Enjoy your day,
Suzana Popovic-Montag

15 Aug

Are you ready for bulletproof coffee?

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

You know the old saying – you have to hear about something three times before you stop to consider it.

I took my full “three times” with bulletproof coffee. First it was seeing a sign in a coffee shop, then it was a display in a small boutique grocery store, and finally it was a personal trainer asking me “have you tried bulletproof coffee? It’s unbelievable.”

Okay, I had to find out what this stuff was. Even though it’s about 500 calories per serving (and typically consumed in place of breakfast), people claim you gain focus and energy – and lose weight. In a nutshell, bulletproof coffee is made in a blender with:

  • 8-12 ounces of brewed coffee
  • 1 teaspoon to 2 tablespoons of Brain Octane Oil
  • 1-2 tablespoons of grass-fed, unsalted butter or grass-fed ghee

Butter, oil, and coffee? From all the reviews I’ve read, it tastes way better than you might think. The bulletproof brew is based on a ketogenic diet, with high fat, moderate proteins, and low carbohydrates. It triggers weight loss through ketosis, a metabolic state triggered by a lack of carbs that kicks fat-burning into overdrive. The idea is that your body will draw upon fat stores as an energy source, rather than simple sugars like glucose, which is derived from carbohydrates.

It’s also supposed to boost cognitive function, bringing some mental clarity into your foggy morning routine (although regular coffee does that for most people).

Lots of people swear by bulletproof coffee, but none more than the people who make it. This blog describes it all:

And if you’re looking for a full, unbiased assessment of the product and the trend, you won’t get a more thorough analysis than this one.

I haven’t tried bulletproof coffee yet. But I will the next time I pass by a coffee shop that makes it. I’ve done my reading – now I want to see the results for myself.

Thanks for reading!
Ian Hull

30 Jul

Should advanced age be a factor considered during criminal sentencing?

Nick Esterbauer Elder Law, Ethical Issues, Health / Medical Tags: , , , , , , , , , , 0 Comments

The Supreme Court of Canada recently refused leave to appeal a decision of the Quebec Court of Appeal that raises the issue of whether old age should be considered as a factor during sentencing.

The appellant had been convicted of fraud, conspiracy to commit fraud, and laundering the proceeds of crime at the direction of or in association with a criminal organization.  A prior appeal regarding the conviction itself had been dismissed by the Quebec Court of Appeal.

The Lower Court recognized the role of the appellant as a directing mind of a criminal organization and the losses suffered by the government as a result of his fraudulent acts.  The Court had stated that age, even if it could be taken into account, was “only one factor among many”, which “cannot have a determinative impact because of the great number of aggravating factors”.

The appellant subsequently sought leave to appeal his four-year prison sentence.  The appellant asserted that, at 81 years of age and in a poor state of health, his sentence ought to be replaced with a conditional sentence to be served in the community or otherwise limited in duration to allow him the prospect of life after prison.

The Quebec Court of Appeal summarized the law as it relates to the consideration of age during sentencing as follows (at paras 38, 39, 42, 43):

The advanced age of an accused must be taken into account when determining a sentence, as Chief Justice Lamer indicated in R. v. M. (C.A.)

The age factor must, however, be considered in light of the health of the offender as it relates to his life expectancy. Consequently, the mere fact that an accused is elderly is not, in and of itself, a mitigating factor in determining a prison sentence, unless the evidence reveals that he has little chance of serving the sentence before passing away. This is increasingly true with the general aging of the Canadian population and the raised probability of longer life expectancies.

As a result, if at the time a sentence is imposed, the offender’s state of health does not suggest that he is unlikely to complete the sentence before his demise, the judge then has the necessary discretion to impose an appropriate sentence in light of all the usual factors and criteria…

It is possible that an offender’s state of health deteriorates following sentencing. This possibility increases with the age of the offender. The sentencing judge may not, however, speculate on this subject and must determine the sentence in accordance with the evidence before him when it is rendered…

The Court nevertheless considered the prison sentence to be appropriate, notwithstanding the expectation of the appellant that he may not survive it.  The Supreme Court agreed with the reasons of the Quebec Court of Appeal.

With Canada’s aging population, cases like this, in which an individual convicted of a crime is elderly and/or in a poor state of health, can be expected to increase in frequency.  The Supreme Court has confirmed that (for the time being at least), while age is a factor to be considered during sentencing, it is merely one to be assessed among others, rather than being determinative of the issue.

Thank you for reading.

Nick Esterbauer

27 Jun

Your health – don’t let your financial guard down

Suzana Popovic-Montag Estate & Trust, Estate Planning, Health / Medical, Trustees, Uncategorized, Wills Tags: , , , 0 Comments

We’re lucky in Canada – our healthcare system pays for doctor bills and hospital visits, and many employer-sponsored benefit plans provide for supplementary health insurance. Even better, universal care is actually expanding in places, such as the recent introduction of free pharmacare for those age 24 and under in Ontario.

But don’t get lulled – there are costs to healthcare. With our comprehensive public coverage, it can be easy to think that your costs will be covered if you were in an accident or experienced a serious illness. But many of us simply aren’t aware of what won’t be covered. For example, out-of-pocket costs could include loss of income (especially if you are self-employed), expensive uninsured prescription drugs and medical supplies, childcare during recovery, or even home renovations to accommodate the illness. And psychological therapy fees represent another potential cost, as mental illness is one of the leading causes of disability in Canada.

So, what can you do to ensure that you are financially prepared for a sudden, serious bad health event? Here are three options to consider:

  • An emergency fund/line of credit: You may need access to cash quickly if a health emergency arises and having a “rainy day fund” for unplanned or unexpected expenses is ideal for that purpose. A line of credit also serves this purpose, although it involves taking on debt and all the costs that that entails.
  • Disability insurance coverage to replace income: Disability insurance replaces a portion of your income if you are unable to work due to an illness or disability. Disability policies vary widely, so even if you have coverage at work, it’s worth checking whether additional personal coverage could be beneficial.
  • Critical illness insurance to cover other costs: This insurance provides a tax-free lump sum benefit upon the diagnosis of a serious illness, such as cancer, heart attack, stroke, blindness, paralysis, kidney failure and multiple sclerosis. Unlike disability insurance, the payment is not linked to your inability to return to work, and you have complete freedom to use the money any way that you wish, including paying for treatment outside of Canada that may not be covered by provincial healthcare.

Of course, rule number one is to stay healthy. But in the event you don’t, be prepared financially. A little planning can go a long way.

Thank you for reading … Have a great day,
Suzana Popovic-Montag

 

20 Jun

Are you ready for weed wine?

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

I came across a blog recently, amustreadblog.com, written by Toronto sommelier Debbie Gordon. She has a lot of great insights about wine from Canada and around the world, and I enjoyed her profile of a man I’d never heard of – Anthony von Mandl – who heads up some of British Columbia’s leading wineries, including Mission Hill.

But before producing award-winning wines that have won honours around the world, Anthony gave the world a much humbler beverage that made him a fortune: Mike’s Hard Lemonade. I realized that there are a lot of different personalities in the wine world, and a lot of different paths to the top.

Then another blog entry caught my eye that reaffirmed the “different personalities” viewpoint – cannabis-infused wine.

Yes, a California winery, Rebel Coast, is marketing Marijuana Infused Sauvignon Blanc. California laws don’t allow alcohol and THC to mix, so the weed takes priority, with 16mg THC and 0.5% alcohol. As Gordon notes, “you may get high but you definitely won’t get drunk.”

I don’t know about you but as an Ontario resident, I’m still getting used to seeing bottles of beer in my local No Frills, let alone weed-infused wine. But as legalization of cannabis comes to Canada, we’re going to be seeing a lot of things that we’ve never seen before. Weed wine may be one of them.

So, what does it taste like? Gordon attended a tasting and gave this description.

“I think it’s fair to say the blend is aromatically unique from the Sauvignon Blanc I’m accustomed to. I smell citrus, hops and something else … Ragweed?  It’s herbal. I tweet “grass” since I don’t want to offend. On the palate? I’m getting something akin to Mello Yello and aging asparagus. Also, higher acidity and rustic, savoury, herb-de-Provence flavours. “Notes of freshly picked pot,” the millennial to my right, knowingly adds.”

I don’t know about you, but I’ll likely be sticking to my inexpensive THC-free house wine.

Thank you for reading,
Ian Hull

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