Tag: elder care

05 Jun

Blowing the Whistle on Nursing Homes

Paul Emile Trudelle Elder Law, In the News Tags: , , , , , 0 Comments

A recent report of the Canadian Armed Forces into the state of five Ontario nursing homes has shed light on disturbing issues inside of the homes.

Early into the COVID state of emergency, the Canadian Armed Forces was asked to assist at 5 Ontario nursing homes, and 25 Quebec nursing homes. In the course of their duties, the Armed Forces noted serious shortcomings at the nursing homes. The report has led to calls for various action, including a coroner’s investigation, and possible police investigations.

It should be noted that there is a statutory duty on everyone to report any suspected impropriety occurring at a long-term care facility. Specifically, s. 24 of the Long Term Care Homes Act, 2007 requires that a person who has reasonable grounds to suspect any of the following has occurred or may occur to immediately report the suspicion and the reasons upon which it is based to the Director of Long Term Care:

  • improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident;
  • abuse of a resident by anyone or neglect of a resident by the licensee or staff that resulted in harm or a risk of harm to the resident;
  • unlawful conduct that resulted in harm or a risk of harm to a resident;
  • misuse or misappropriation of a resident’s money; or
  • misuse or misappropriation of funding provided to a licensee.

While there is an obligation on everyone to report the suspicion of such conduct, it is only an offence if certain described individuals fail to report. These individuals include the licensee, an officer or director of any corporate licensee, a staff member, or any person who provides professional health, social work or social services to a resident or licensee.

Long term care licensees also have a statutory obligation to ensure that any alleged, suspected or witnessed incident of abuse of a resident by anyone, neglect of a resident by the licensee or staff is investigated, and that “appropriate action” is taken in response to any incident. The results of the licensee’s investigation and the action taken in response are to be reported to the Director. Further, the Act requires that the licensee must establish a procedure for initiating complaints to the licensee and for how the licensee deals with the complaints.

The report of the Canadian Armed Forces will, hopefully, bring about positive change for a vulnerable, often voiceless segment of society. Others should (or in some cases, must) also come forward to report harmful conditions or conduct. If you see something, say something.

Thanks for reading.

Paul Trudelle

04 Jun

Social distancing in long-term care: did it cause more harm than good?

Sydney Osmar Uncategorized Tags: , , 0 Comments

There is no denying that long-term care homes have been significantly impacted by the COVID-19 pandemic. Yesterday, the Globe and Mail released a sobering article on the impact social isolation has had on Canada’s long-term care and nursing homes, citing that approximately 82% of the country’s COVID-19 deaths have been linked to long-term care facilities.

Now, family members and advocates for Elders are learning that banning visitors from nursing homes could have inadvertently created negative consequences for residents. Prior to social distancing restrictions having been put into place, relatives and private caregivers were often-times relied upon at mealtimes. Through banning visitors, already short-staffed facilities lost the extra assistance provided by family members and private caregivers.

CanAge, a national seniors’ advocacy organization, is receiving concerning reports that some residents are not being fed, with mealtimes forgotten.

This is especially concerning given the risks that extreme temperatures bring as the summer months approach. Jane Meadus of the Advocacy Centre for the Elderly (“ACE”) explains that Ontario’s most recent design standards for new long-term care homes (last updated in 2015), still do not require rooms to be air conditioned, only common areas. For more on the difficulties extreme temperatures pose for residents and front-line workers alike, see here.

Heather Keller, who researches nutrition and aging at the University of Waterloo explained further difficulties social isolation poses to residents’ nutrition, especially those with cognitive impairments. When eating alone, residents tend to consume less, as they are not exposed to important social cues they would otherwise get if eating in a dining room setting.

Families and seniors’ organizations are calling on Ontario (and other provinces) to relax restrictions on visits, citing the risks to residents’ physical and mental health.

For more on our coverage of COVID-19’s impacts on long-term care, please see links to the below blogs:

A Call for Change in Toronto’s Long-Term Care Facilities

Are Ontario’s Long-Term Care Facilities Ready for COVID-19?

More needs to be Done to Protect Those in Long-Term Care

TALK 2 NICE: Support for the Elderly During COVID-19

Finally, for information on the Residents’ Bill of Rights within Ontario’s Long-Term Care Homes Act, 2007 see Stuart Clark and Doreen So’s podcast here.

Thanks for reading!

Sydney Osmar

15 May

TALK 2 NICE: Support for the Elderly During COVID-19

Paul Emile Trudelle General Interest, In the News Tags: , , , , , , 0 Comments

Today I learned about the National Initiative for the Care of the Elderly (“NICE”) and their Talk 2 NICE program.

NICE is an international network of researchers, practitioners and students dedicated to improving the care of older adults. Members come from a broad spectrum of disciplines and professions.

In response to the COVID-19 pandemic, NICE is providing free outreach and counselling to older adults and persons with disabilities. Callers are able to speak to social workers or social work students. Talk 2 NICE can be reached toll free at 1 (844) 529-7292. Or, a time for a call from Talk 2 NICE can be scheduled on their webpage. The program can also be accessed over the internet by clicking on a link. Referrals for friends or family members are also accepted.

Callers have a choice of scheduling either a 15 minute or 30 minute “Friendly Check-In”.

The call is designed to help those socially isolated and lonely due to the current crisis. The service is also offered to caregivers. The trained volunteers will provide uplifting phone calls that respond flexibly to the needs of the caller, and will offer information about other available resource

Another excellent resource provided by NICE is a pamphlet entitled “To Stay Or To Go?: Moving Family from Institutional Care to your Home During the COVID-19 Pandemic”. The brochure discusses a number of considerations to be taken into account when considering whether to remove a family member from a Long-Term Care Facility.

Mental health should be top of mind during these unique times. This is particularly so for the elderly. The service provided by NICE is an excellent resource. Pass on this information to anyone who may benefit from such a call.

Thanks for reading.

Paul Trudelle

P.S. Call your mother (or anyone else you know who may benefit from an isolation-breaking telephone call).

14 Apr

More Needs to be Done to Protect Those in Long-Term Care

Natalia R. Angelini In the News Tags: , , , , , , 0 Comments

I was heartened last week to see Ontario’s Premier pushing for personal protection equipment (PPE), and to read here that he has joined forces with Hayley Wickenheiser and many volunteers to obtain, organize and distribute PPE to front-line workers. This equipment is desperately needed in hospitals and health care facilities, and especially for residents and workers in Long-Term Care Homes (LTCH) who have been vulnerable to the COVID-19 pandemic. Sadly, half of our country’s deaths are noted as connected to LTCH.

More needs to be done to protect those in LTCH, as many of the elderly and their families are suffering greatly as a result of the rapid spread of the disease.  It is heartbreaking to regularly see media reports of yet another outbreak and more deaths. Pinecrest Nursing Home is Bobcaygeon, Ontario has sustained tremendous loss, with nearly half of its residents reportedly succumbing to the disease. Another tragic loss of life has taken place in a Montreal LTCH, where 31 residents have died in the last month. Some deaths are from the virus, and staff not reporting to work may also have contributed to the devastation. Police and public health investigations are ongoing in that case, as reported here.

Increased staff absences in an already strained system are surely aggravating the suffering, in addition to staff mobility between facilities. Many staff are part-time workers, and also work in other homes or hospitals to supplement their income. Ontario has not yet clamped down on the issue, but here it is reported that British Columbia has learned a hard lesson after an outbreak at one of its LTCH and upon obtaining evidence that care staff were potentially carrying the virus from home to home. As a result, an Order of the Provincial Health Officer was issued to restrict the movement of staff by ensuring that they work in only one facility.

In Ontario, the Chief Medical Officer of Health has released a Directive for LTCH. However, we have yet to see a firm commitment to mandate working at a single facility. This is particularly worrisome when coupled with the relaxed screening measures recently implemented by way of O. Reg. 95/20: Order Under Subsection 7.0.2 (4) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 – Streamlining Requirements for Long-Term Care Homes. I support the government taking urgent measures intended to help our most vulnerable elderly Ontarians, but hope that soon we can receive  assurance that immediate action is being taken to support the new measures, including adequate testing, tracking, tracing, isolation, quarantine, PPE and training.

Thanks for reading and stay safe,

Natalia Angelini

10 Mar

Are Ontario’s Long-Term Care Facilities Ready for COVID-19?

Christina Canestraro Elder Law, Ethical Issues, General Interest, Health / Medical, In the News, News & Events, Public Policy Tags: , , , , , , 0 Comments

There’s a really good chance that if you live anywhere in the world that is not completely disconnected from the rest of society, you would have heard about COVID-19, and the fact that it has officially reached every single continent (except for Antarctica). The World Health Organization (WHO) has maintained that the containment of COVID-19 must be the top priority for all countries, given the impact it may have on public health, the economy and social and political issues.

Around 1 out of every 6 people who gets COVID-19 becomes seriously ill and develops difficulty breathing. Older people, and those with underlying medical problems like high blood pressure, heart problems or diabetes, are more likely to develop serious illness.

In a statement released on March 4, 2020, the WHO indicated “although COVID-19 presents an acute threat now, it is absolutely essential that countries do not lose this opportunity to strengthen their preparedness systems.”

In the US, nursing homes are being criticized for being incubators of epidemics, with relaxed infection-control practices and low staffing rates, among other issues.

The value of preparedness is being played out in a Seattle suburb, where COVID-19 has spread to a local nursing home, resulting in a quarantine of residents and staff.  In the US, nursing homes are being criticized for being incubators of epidemics, with relaxed infection-control practices and low staffing rates, among other issues. Friends and family of residents in this Seattle facility are in an unenviable position, worrying about the health and safety of their loved ones and considering the gut-wrenching possibility that their loved ones might die alone. To read more about this issue, click here.

With the number of confirmed positive cases of COVID-19 on the rise in Ontario, I wonder how our long-term facilities are preparing to deal with an outbreak should one occur?

 

In the spirit of prevention, it is important to consider reducing the frequency of visits with our elderly loved ones, and spreading knowledge and information about hand-washing and other preventative measures.

For more information about COVID-19, click the links below:

Government of Ontario: https://www.ontario.ca/page/2019-novel-coronavirus

World Health Organization: https://www.who.int/emergencies/diseases/novel-coronavirus-2019

Thanks for reading!

Christina Canestraro

04 Mar

Predator Attorneys and Their Elderly Victims

Suzana Popovic-Montag Estate Planning Tags: , , , , , 0 Comments

In a recent story entitled, “What can happen when seniors appoint the wrong power of attorney”, CBC News sheds light on a problem that may be on the rise in Canada: attorneys for property preying on elderly incapable people.

The story focuses upon Christine Fisher, a widow and World War Two veteran, and Theresa Gardiner, who became Ms. Fisher’s attorney and then defrauded her of at least $78,000 over the course of three months. The attorney was charged, but after agreeing to pay $20,000 in restitution, the charges were dropped, the police citing an insufficient chance of conviction. The difficulty in convicting predator attorneys, in fact, is all too common, for the key witnesses in such cases often suffer from dementia and other impairments, and therefore struggle to recall or recite the requisite facts in their testimony.

Placing one’s trust in a family member may be safer, but it is not bullet-proof, as evidenced by the case of Royale Klimitz, whose eldest son, David Klimitz, used the power of attorney to drain his mother’s retirement savings from $557,000 to a mere $83. When Ms. Klimitz died shortly after, her other two children alleged it was of a broken heart. Before she died, however, she provided the Crown with two video-taped victim impact statements which contributed to her son’s conviction.

Not all predator attorneys are necessarily evil and insidious. As we have blogged in the past, some predator attorneys are otherwise good people who fall into temptation. This often occurs because being an attorney allows for opportunity to do wrong with little chance of detection; predator attorneys also often rationalize that in doing the work, they are entitled to more desserts; and financial need can be a burden too heavy for some people’s moralities to withstand.

So then, what can elderly people, in arranging their affairs, do to protect themselves? Sections 32, 33, and 35 of the Substitute Decisions Act impose obligations on attorneys to consult with the incapable person’s family members, keep detailed records of the incapable person’s finances, and review the incapable person’s will to ensure that testamentary assets are preserved.

Most importantly, just like picking spouses, business partners, or sports teams, the happiest results flow from the selection of trustworthy people. Similarly, it is best to avoid those with selfish and dishonest tendencies, or who would sway like aspens rather than stand like oaks under economic pressure. So when your sibling cheats on board game night, or your friend constantly “forgets” to bring wine or a dessert to dinner parties, or your child’s favourite conversational topic becomes “my inheritance” – it may be wise to steer well clear and choose another attorney!

Thank you for reading. Have a wonderful day,

Suzana Popovic-Montag and Devin McMurtry

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 

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