Tag: elder care

05 Dec

Fraud against seniors – can it happen in your family?

Suzana Popovic-Montag Elder Law, Estate & Trust, Estate Planning Tags: , , 0 Comments

By now, many of you have had a phone call from the “Canada Revenue Agency” informing you that you owe money, or that a lawsuit or collection process has begun. It’s a scam that’s obvious to most of us – and we hang up and don’t give it a second thought.

But in a small minority of cases, the scam works, and Canadians have lost thousands of dollars in the process. It’s not just seniors – many middle-aged adults have been victims as well.

Which brings me to a key point: if brazen scams can work on those in the prime of life, how vulnerable are seniors who may be suffering from both physical and mental frailties?

Know what’s out there

The Canadian government’s Anti-Fraud Centre has a website that outlines four common fraud schemes that target seniors, and steps to protect them. 

Here’s an overview of the four types:

  • Prize winner: Canadian seniors receive notice (mail, phone, or email) that they’re the winner of a large lottery or sweepstake. A request is made for money to cover costs in securing the winnings.
  • Family emergencies: Seniors receive a call from someone claiming to be a family member or a close friend. They describe an urgent situation that requires money.
  • Service scams: There are many types, but one of the most common involves a phone call from someone claiming to be from Microsoft or Windows who has detected a virus in the victim’s computer, with money needed to make repairs.
  • Friendship/romance: Scammers can spend months grooming a victim into a friend or romantic relationship, either online or in person. Eventually, a request for money is made.

The bottom line is that scams come in many forms. While seniors can most definitely learn to protect themselves, this becomes much harder if there’s been a decline in mental abilities. The best way to protect elderly parents or other seniors is to check in with them every few days to probe for any unusual actions. You can also ask the individual to follow one simple rule: check with me first (or with another son or daughter) before committing money to anything. It’s a great delay tactic that will often stop a scam in its tracks.

Savvy senior? Take the quiz

This short 10-question quiz is designed to test a senior’s ability to spot online scams, but it’s a great test for anyone to take. See how you do, then try it out with a senior in your life.

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

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

13 Sep

Detecting Warning Signs of Elder Abuse

Kira Domratchev Capacity, Elder Law Tags: , , , , , , , , 0 Comments

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:

  • shame/embarrassment
  • dependence on abuser/family member
  • guilt/self-blame
  • 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
  • Neglect

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.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

When Elder Abuse Goes Undetected

Elder Abuse in the News

A New Way to Prevent Elder Abuse

 

10 May

POA Self-Dealing Transaction was Set Aside: the Reasonably Necessary Test

Doreen So Capacity, Continuing Legal Education, Elder Law, Estate & Trust, Ethical Issues, Executors and Trustees, General Interest, Guardianship, Litigation, Power of Attorney Tags: , , , 0 Comments

Previously on our blog and podcast, we discussed Tarantino v. Galvano, 2017 ONSC 3535 (S.C.J.)  in the context of the counterclaim for quantum meruit and the costs decision of the Hon. Justice Kristjanson.

Tarantino v. Galvano arose from a lawsuit that was commenced by two out of three Estate Trustees against the third Estate Trustee, Nellie, with respect to her actions as attorney for property for the Deceased, Rosa (i.e. Nellie’s actions while the Deceased was still alive but incapable of managing her own property).

Rosa had two daughters, Nellie and Giuseppina.  Giuseppina died before Rosa.  Guiseppina’s daughters were the other two Estate Trustees and they are beneficiaries of the Rosa’s Estate along with Nellie.  For the better part of her life, Nellie lived with Rosa.  She took care of her mother after her father’s death.  Nellie and her son were also Rosa’s caregivers as Rosa’s health declined until Rosa’s death in 2012.

Rosa and Nellie owned the home that they lived in together.  Rosa held an 80.3% interest and Nellie held an 19.62% interest.  Pursuant to Rosa’s 2005 Will, Nellie had a right of first refusal to purchase the home from Rosa’s Estate.  In 2008, on the advice of counsel while Rosa was incapable, Nellie entered into an agreement between herself and Rosa.  The agreement provided for a transfer of Rosa’s interest in the home and 75% of Rosa’s pension income to Nellie in exchange for Nellie’s caregiving services.  The agreement was in writing and it was signed by Nellie.  Nellie signed for herself and for Rosa, in her capacity as Rosa’s attorney for property.

Even though the Court found that Nellie was a good daughter who held up her end of the bargain by caring for Rosa, the agreement was set aside because it was a self-dealing transaction that did not meet the requirements of the Substitute Decisions Act, 1992:

“[46]    Under the Substitute Decisions Act, Nellie could only enter into the agreement to transfer the house and pension income if it was “reasonably necessary” to provide for Rosa’s care, which I find it was not. As a fiduciary, an attorney for property is “obliged to act only for the benefit of [the donor], putting her own interests aside”: Richardson Estate v. Mew, 2009 ONCA 403 (CanLII), 96 O.R. (3d) 65, at para. 49. An attorney is prohibited from using the power for their own benefit unless “it is done with the full knowledge and consent of the donor”: Richardson Estate, at paras. 49-50. Rosa lacked capacity at the time of the Agreement, and the transfer of the house and pension income therefore were not done with Rosa’s full knowledge and consent.”

The “reasonably necessary” test was assessed, as of the time of the transfer, rather than from hindsight and it was determined that the decision to transfer 80.3% of a home and 80% of Rosa’s pension income at the outset of care was “an imprudent agreement which benefitted Nellie beyond that ‘reasonably necessary’ to provide adequately for Rosa’s care” (see paragraphs 34-49 for the Court’s analysis of this issue).

As a set off, Nellie’s quantum meruit claim was successful and you can click here for Ian Hull and Noah Weisberg’s podcast on this particular issue.  While there was blended success to all parties involved, none of the three Estate Trustees were entitled to indemnification.  Our discussion of the denial of costs can be found here and the Endorsement can be found here.

Thanks for reading!

Doreen So 

12 Apr

New Model of Care for Those with Dementia Coming to Canada

Sayuri Kagami Elder Law, General Interest, Health / Medical, In the News, Public Policy Tags: , 0 Comments

Canada’s population of seniors continues to rise and with that comes the concerns of attending to the unique needs of an ageing demographic.  In 2016, Canadian census data showed that the number of seniors in Canada was slightly higher than that of children 14 and under. Canada, like the rest of the world, has been undergoing changes to account for the population changes that include a growing number of individuals struggling with dementia. Today, I’ll explore an innovative new project in British Columbia aimed at providing a safe yet independent living environment for seniors with dementia.

The Village is a new residence which will accommodate those with dementia in an environment meant to provide the feel of a small village or community. Residents will live in cottage style residences with nearby amenities such as a grocery store, a salon, a coffee shop and a community garden. While residents will be able to go about their lives in the community, they’ll also have the care they require. The project is modeled after the first “dementia village” that was opened in Amsterdam. The goal behind such communities is to move those with dementia away from an institutional setting so as to improve their quality of life.

With estimates that approximately 940,000 people will have dementia in Canada by 2031, it’s great to see new and innovative options available for those with such an illness. Right now, the project in BC is slated to open in 2019 and is a private endeavour meaning residents (or their family) will be responsible for the full cost.

While the project is still in its infancy, it will be interesting to see how it develops and how it might be implemented in the rest of Canada.

From a legal (and Ontario-centric) perspective, it is interesting to note how the goals of “dementia villages” align with the Residents’ Bill of Rights under Ontario’s Long-Term Care Homes Act, 2007. The Residents’ Bill of Rights includes a lengthy list of rights of residents of long-term care facilities designed to promote recognition of the dignity, security, safety, and comfort of residents. Included in the Residents’ Bill of Rights is “the right to receive care and assistance towards independence based on a restorative care philosophy to maximize independence to the greatest extent possible.” The development of dementia villages shows one way in which this right may be furthered.   

Thanks for reading!

Sayuri Kagami

08 Feb

Types of Elder Abuse and Why It Often Goes Unreported

Ian Hull Elder Law Tags: , , , , , , , 0 Comments

The World Health Organization defines Elder Abuse as a single or repeated act, or lack of appropriate action, occurring in any relationship where there is an expectation of trust that causes harm or distress to an older person. According to the Ontario Network for the Prevention of Elder Abuse (“ONPEA”), the number of seniors over 65 in Ontario is expected to increase to almost 4.2 million by 2036, and tragically it is estimated that between 2% and 10% of older adults will experience some form of elder abuse each year.

There are generally considered to be five categories of elder abuse: physical abuse, sexual abuse, emotional or psychological abuse, financial abuse, and neglect.

Physical abuse can include physical force or violence and may result in physical discomfort, pain, or injury. This can include inappropriate use of drugs or restraints. Sexual abuse involves any sexual behaviour directed toward an older adult without their consent, and also includes contact with older adults who are incapable of consenting. Psychological or emotional abuse includes verbal or non-verbal acts that lessen a person’s sense of dignity, identity, or self-worth. This can be manifested in multiple ways, such as isolation, hurtful comments or lack of acknowledgement. Financial abuse is the most common form, and ONPEA defines it as “any improper conduct, done with or without the informed consent of the senior that results in a monetary or personal gain to the abuser and/or monetary or personal loss for the older adult”.

A recent article in the Psychiatric Times discussed why so many cases of elder abuse go unreported. The author suggests that this could be due to shame or humiliation, or the victim may refuse to acknowledge the fallacy of the scam that took advantage of them. An individual who has been the victim of elder abuse may not conceive of themselves as a victim, resulting in a failure to report abuse, or in denial if questioned. Additionally, an older adult who was rendered particularly vulnerable due to incapacity may be unaware of abuse or unable to report it.

The article also states that many actions that constitute abuse are often not recognized as such by the abused party: “The label ‘abuse’ tends to connote adversarial and overtly hostile action, but of the ‘weapons’ of abusers, affection is especially effective because it serves to make the abused person complicit in the acts—he or she really wants to comply with the abuser.“

There are many concerns surrounding elder abuse and elder care. It is important to be aware of such concerns and to stay informed in order to bring more attention to issues affecting older adults.

Thanks for reading.

Ian Hull

07 Dec

Geriatric and Long-Term Care Review Committee Annual Report for 2013-2014

Ian Hull Elder Law Tags: , , , , , , , 0 Comments

In October 2015, the Geriatric and Long-Term Care Review Committee (the “Committee”) of the Office of the Chief Coroner for Ontario released their Annual Report for 2013 and 2014 (the “Report”). The purpose of the Report is to review circumstances surrounding deaths of elderly persons that have been investigated by the Office of the Chief Coroner and brought to the attention of the Committee, with a view towards recommending preventative measures.

Over the years, the Committee has identified themes that have been consistently present in the cases they review, including “communication/documentation” and “determination of capacity and consent for treatment”.

In 2013, the Committee reviewed 26 deaths, and in 2014, they reviewed 19 deaths. The four most common areas for improvement identified in the report were:

  • Medical and nursing management;
  • Communication between healthcare practitioners regarding the elderly;
  • Medical/Nursing documentation; and
  • Use of drugs in the elderly.

The Report and the recommendations generated in each case are made available to doctors, nurses, healthcare providers, social service agencies, and others, for the purposes of death prevention awareness. The organizations and agencies to whom the recommendations have been provided, are then asked to report to the Office of the Chief Coroner within one year of receipt, and provide an update on the status of their implementation. However, the organizations are not legally obligated to implement or respond to the recommendations.

It is also noted in the Report that “[t]rends or themes may exist due to a selection bias of cases that are referred to the [Committee] for discretionary review.” The Report also states that due to “resource issues”, the Reports for 2013 and 2014 have been summarized and combined. Therefore, there are potential deficiencies and areas in which there is room for improvement.

Reducing avoidable deaths of elderly persons is a moral imperative. Although the fact that this Report exists is a step in the right direction, we should continue to appreciate the seriousness of the issue and to examine how needless deaths of elderly persons can be prevented.

Thanks for reading.

Ian Hull

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