Tag: Elder Law
A few months ago, I blogged about a New Yorker article that discussed the challenges of living well now that people are living longer than ever, and what is being done about it. One of the topics addressed was the difficulty of marketing certain products that are aimed at older adults, mainly because we do not want to buy something that will remind us that we are aging or old.
A recent article in MIT Technology Review asked an interesting, and related, question: Why are products for older people so ugly?
One quote in particular, I think, sums up the issue quite well:
Presented with products that are ‘brown, beige, and boring,’ many older people will forgo convenience for dignity.
Unfortunately, most individuals and companies who design products for older people seem to make assumptions about what older people are looking for in a product. For instance, they may assume that an older person cares more about functionality than aesthetics. In many cases this is not necessarily true, and the older person in question will likely end up feeling that the product ultimately draws unwanted attention to their age and particular needs.
The article discusses the idea that older people should be more directly involved in conversations about how to design the products that they need, or that are aimed at them. This would, of course, be helpful to those designing and using the products, but would also allow older people who may feel that they are no longer seen as contributing to society, do something that they may find useful and fulfilling.
The “Longevity Explorers” consulting group was created around this concept. It started with a group of older people meeting to discuss aging in order to pinpoint the areas that product developers should focus on. Participants can suggest topics they want to cover, and there is also a moderator who will introduce a main discussion topic. In 2017, a separate branch of the group was introduced to serve as paid focus groups for companies. Each “Explorer” receives a fee for participating in the focus group, and in exchange, the company gets feedback from their targeted customers (namely, seniors) about a product that they are designing.
This seems like a much-needed shift in how we think about products for older people. If we can focus on creating products that not only address the needs of older people, but are designed in a way that will make seniors want to use the product, both the companies selling the products, and importantly, the older people using them, will benefit.
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Financial elder abuse can take many forms. We have previously blogged about elder abuse by family members, as well as the role technology plays in the increase in phone and email scams affected seniors.
This Global News article tells the story of an elderly couple who claim they were pressured into selling their house.
The couple had lived in their home in Woodbridge, Ontario, for over 20 years, and had no plans to move or sell their home. Although the house was not for sale, in February 2012, a real estate agent showed up at the couple’s door with an offer to purchase the home. There is some dispute about the subsequent interactions between the couple and the agent, but ultimately, a contract was signed for the sale of the couple’s home. After seeking advice from a lawyer, the couple refused to close on the sale of the home. The buyer brought a claim against the couple to enforce the contract, and it appears from the article that, as of October 2018, the litigation remained ongoing.
The couple say that, initially they ignored the offer to purchase that had been delivered by the real estate agent. The husband told his daughter that he had asked the agent several times to give him a few days to consult with his children before finalizing any deal. On the other hand, the agent says that negotiations occurred over a three-day period, and the couple had several days to consider the offer and consult with their children.
There is also a question of whether the couple was capable of entering into the sale transaction. The couple’s daughter says that the wife was 84 years old at the time and suffering from early onset dementia, and that the husband was not fluent in English.
The couple’s daughter believes that her parents were pressured into agreeing to sell their home by the agent. The article mentions that a similar situation could come up with any door-to-door salesperson, as elderly people are generally home during the day, and will typically open their door and talk to people. Unfortunately, there isn’t really a simple solution if an older adult is pressured into an agreement. If the other party to the agreement is intent on enforcing it, the senior may need to resort to failing to comply with the terms of the contract, which is likely to lead to litigation. That can be a stressful and time-consuming endeavour—the couple in the article are apparently still involved in litigation years after the contract was entered into.
Incidents like these are an unfortunate reminder that elder abuse continues to be an issue, and that it can take many forms. That being said, with increased attention will come increased awareness, which, I hope, will lead to the prevention or avoidance of similar issues in the future.
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On today’s podcast, Natalia Angelini and Rebecca Rauws discuss elder law issues, including the increasing prevalence of such issues in our practice, the different viewpoints on damages, and the need for more case law in this area.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
These days, life expectancy is longer than ever. We have previously blogged (for instance, here and here) about some considerations and consequences of having a longer life expectancy. A recent article in The New Yorker considers aging, and in particular, anti-aging now that people are generally living longer. The online version can be found here: Can We Live Longer but Stay Younger?
One of the problems with living longer, as highlighted in the New Yorker article, is that we still must deal with the challenges and realities of aging. What we really want is not eternal life but rather, eternal youth.
The article discusses several efforts to address or counteract the types of issues that we face as we age. For instance, a geneticist at Harvard has successfully extended the life of yeast, and is moving on to human trials. A Harvard molecular biologist, George Church, has had success reprogramming embryonic stem cells to essentially turn an old cell into a young cell. Church’s work has been done so far on mice and dogs, but there are plans to commence human clinical trials within the next five years.
The goal of the work being done by Church is to live better, not necessarily longer: “The goal is youthful wellness rather than an extended long period of age-related decline.” The article discusses the nature of this age-related decline, through the illustration of a “sudden aging” suit that allows the wearer to experience the physical challenges of aging, including boots with foam padding to produce a loss of tactile feedback, and bands around the elbows, wrists, and knees to simulate stiffness. The point of the aging suit is to help create empathy and understanding about how difficult each and every task (an example was reaching up to a top shelf and picking up a mug) can be for older adults, both physically and mentally. So the question becomes, if we are living so much longer, but with age, every day and every task becomes much more difficult, what can we do to counteract that?
The work being done related to anti-aging and the creation of products to make older people’s lives easier is interesting and seems to be moving in new directions. For instance, the article mentions the difficulty of marketing certain products aimed at older people, because we do not like the idea of buying something that reminds us that we are old. So instead of selling a personal-emergency-response system to send an alert and seek assistance in the event of a fall, or some other physical emergency, in the form of a pendant worn around the neck, it is suggested that the most effective such device would be an iPhone or Apple Watch app.
Unfortunately, the issue of dementia is still a concern. There still does not appear to be a cure in sight for Alzheimer’s or other forms of dementia. The causes remain unclear. The effects, however, are evident. One of the individuals mentioned in the article was Professor Patrick Hof, who studies brains. On the physical effects of dementia on our actual brains, Professor Hof notes that “[y]ou can’t tell any difference, even under extreme magnification, between an aging non-demented brain and a younger human one…But, holding an Alzheimer’s brain in your hand, you can see the atrophy.” It appears that there is still a lot of work to be done in this area, in particular.
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In the last couple of decades we have seen a rise in estate, capacity and trust litigation due in large part to the aging demographic. One would think that elder law disputes – disputes involving retirement residences, nursing homes and/or long-term care facilities – would similarly be on the rise. What was highlighted for the attendees at a recent Personal Injury and Elder Law CLE presentation, however, is that there is limited case law in the elder law area. Although the knee-jerk reaction may be to see few cases litigated through to a final hearing as a positive state of affairs, that is not so. Rather, it seems that there are an insufficient number of claims being made, and an even fewer number that are pursued all the way to trial.
The panel sees ageism as contributing to this set of circumstances. Damage awards are typically lower for the elderly, the rationale seemingly that they have already lived most of their lives and are going to die anyway. The converse “Golden Years Doctrine” was cited as a means to argue for the better protection of elderly plaintiffs, grounded in the argument that the elderly suffer more and are more severely impacted from an injury than their younger counterparts.
Taking such cases to trial and increasing awareness (e.g. media coverage) is a way to create progress and change in this area of the law. The panel advocated for this approach, as well as stressed the importance of electing to have such cases heard in front of a jury, who may be more willing to award larger sums to litigants.
If this advice is followed, we can hope to see more decisions that can build upon the few noted cases in the area (this article references some of them), and more just outcomes for the elderly, their families and/or their estates.
Thanks for reading and have a great day,
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,
Although knowledge and understanding of the issue of elder abuse is growing, I don’t think we have yet arrived at a point where it is openly discussed among different groups of people, or where victims of abuse feel completely comfortable coming forward.
In New Brunswick, the Abuse and Neglect of Older Adults Research Team (ANOART) is conducting research into abuse of older adults, and specifically looking at how abuse affects older men and women differently. This article discusses ANOART’s work and an upcoming conference on this topic.
According to the ANOART, older men more often suffer abuse from their children, but older women are more likely to experience intimate partner violence. This specific type of abuse in relation to older women is not mentioned in discussions of elder abuse as often as other types of abuse, such as financial abuse, or general physical abuse. However, ANOART has found that intimate partner violence against women earlier in life does not stop later in life, but rather evolves.
Although the aggressor of intimate partner violence may be less physically capable of physical abuse as they age, the older woman who is being abused may still feel pressure not to speak out, as to do so may create tension or conflict within their family. Older women may also be financially dependent on their partner, which can be a significant barrier to reaching out.
Services for intimate partner violence are usually focused and targeted at younger women, leaving a gap when it comes to older women. ANOART is working to break the stigma surrounding intimate partner violence against older women, to spread information, and to raise awareness. The hope is that this will assist in reaching out to those who need help more effectively, and make it easier for olden women to seek help.
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Many of us are familiar with the concept of “elder abuse” or “elder neglect”, however, it is not always clear what that entails. WEL Partners consulted with the Toronto Police Services in developing an information guide for officers, on this very topic. It is now a guide that has been distributed to officers in the field.
Elder abuse/neglect “is any action or inaction, by a person in a position of trust, which causes harm to an older person”, as the guide indicates. As Toronto Police Services officers are often the only point of contact for older adults with the “outside world”, they are also often their only real chance of getting the help they need.
The guide lists various reasons as to why elder abuse/neglect is often under reported by the older adults that are the victims of such treatment:
- dependence on abuser/family member
- rationalization/minimization of the abuse
- denial of the abuse
- lack of recognition of abuse
- physical inability to report abuse
- feelings that they will not be believed
In the absence of victim/witness statements that are often relied on as evidence, the officers investigating these situations should be able to recognize some subtle warning signs of potential abuse of older individuals.
Some common types of abuse are noted as follows:
- Financial abuse
- Physical abuse
- Psychological abuse
The report describes various red flags for each of the categories listed of the common types of abuse. It further describes some additional considerations such as the mental capacity of the senior adult and the following questions to consider in assessing whether capacity is present:
- ability to understand the information needed to make a decision; and
- ability to appreciate the consequences of making, or not making, a decision.
For more information on this valuable resource in assessing whether the circumstances at hand show signs of elder abuse/neglect, see the Elder Abuse & Neglect: A Guide for Police Officers.
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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.
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I recently came across several articles (one of which can be found here) regarding the elder financial abuse of a senior gentleman in Moncton, New Brunswick. Around 2013, Mr. Goguen had been living in the home that he owned, with tenants residing in part of the property. Upon deciding to sell his home, Mr. Goguen was referred to Ms. Hannah and Mr. Poirier, licensed real estate agents in New Brunswick. After the home had been listed for sale for some time, without success, Ms. Hannah apparently told Mr. Goguen that his home was in such deplorable condition that it would be impossible to sell without making certain repairs (which Ms. Hannah says Mr. Goguen could not afford) and removing the tenants (whom Ms. Hannah has claimed were using drugs and not paying rent).
As a result of the alleged difficulty in selling Mr. Goguen’s house, he, Ms. Hannah, and Mr. Poirier entered into an agreement whereby Ms. Hannah and Mr. Poirier purchased Mr. Goguen’s home. The terms of the arrangement were not favourable to Mr. Goguen, and it appears that Ms. Hannah and Mr. Poirier did not follow through on certain aspects of the agreement.
The Financial and Consumer Services Commission, which regulates real estate agents in New Brunswick, has revoked Ms. Hannah and Mr. Poirier’s real estate licenses. The Commission stated that Ms. Hannah and Mr. Poirier committed financial abuse of a senior and took “outrageous and egregious advantage” of Mr. Goguen. The Public Trustee of New Brunswick has now become involved on Mr. Goguen’s behalf, and has filed a statement of claim against Ms. Hannah and Mr. Poirier, seeking $83,320.00, characterized as the amount owing to Mr. Goguen.
We’ve blogged about elder abuse a number of times. Unfortunately, due to factors such as isolation, physical difficulties, and cognitive impairments, elderly people are often vulnerable to abuse. Given this vulnerability, and the circumstances in which abuse occurs, it can go undetected for a significant amount of time. In such situations, it may be too late to make the elderly person “whole” if the abuse is not discovered until it is too late.
Fortunately in Mr. Goguen’s case, despite the fact that it took a number of years, the Public Trustee discovered the abuse and is now taking steps to protect Mr. Goguen and recoup funds owed to him by his abusers. However, the Public Trustee is seeking the amount of approximately $83,000.00, which may not fully reimburse Mr. Goguen for the value of the house had it been sold to a normal third-party purchaser. Additionally, one of the articles also notes that Mr. Goguen had named Ms. Hannah and Mr. Poirier as his attorneys, and also executed a will naming them as executors and beneficiaries of his estate. It is unclear whether the Public Trustee has sought any relief in this regard. As such, even though the Public Trustee may be pursuing relief on Mr. Goguen’s behalf, it is an unfortunate possibility that he may continue to feel the effects of the abuse.
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