Tag: Elder Law
Last week, we blogged on serious deficiencies recently observed in long-term care facilities in Ontario and elsewhere in the country as a result of the Covid-19 pandemic. Improvement of conditions in long-term care homes has long been on the radar for many Canadian provinces even prior to Covid-19. The recent pandemic has highlighted many of the shortcomings of long-term care and provided the much-needed impetus for all levels of government to rethink ways to improve living conditions for residents.
One of the key issues highlighted by the pandemic is the reliance many residents have on family and friends to supply necessities such as food, clothing, and personal care items. Thinking about this led me to consider another important supply chain that may be suspended for residents of long-term care facilities; the supply of medical and recreational marijuana.
Prior to the Cannabis Act, S.C. 2018, c. 16, which came into effect on October 17, 2018, it was illegal to possess, obtain, produce, traffic, and import or export cannabis, except for cannabis for medical consumption. The new regime decriminalized the recreational use of cannabis, while regulations dealing with medical cannabis remained in place. The Cannabis Act was introduced for a number of reasons, one of which was to protect public health and safety to allow adults legal access to marijuana.
With the decriminalization of recreational marijuana came the loosening of stigmas surrounding marijuana consumption. A growing body of scientific studies suggest that marijuana presents a number of health benefits when used appropriately, such as relief of chronic pain, improved lung capacity, and the alleviation of feelings of anxiety and/or depression. The number of seniors using cannabis since 2012 has increased tenfold, with 52% of seniors reporting using cannabis exclusively for medical reasons, 24% for non-medical reasons, and 24% for both medical and non-medical. Unfortunately, accessing and storing marijuana is not as easy for seniors in long-term care as it is for most adults.
Notwithstanding the new regime, medical cannabis is still required to be purchased from a federally licensed producer by doctor’s order. For many residents, their primary care physician is the resident physician in their long-term care home. Naturally, not all practitioners are comfortable prescribing medical marijuana, meaning residents who prefer to consume marijuana must travel offsite to obtain such prescriptions. Even if a resident is able to obtain medical marijuana, individual long-term care facilities may have different policies in place regarding the delivery and storage of marijuana.
For some, the introduction of the Cannabis Act alleviated some of the above-noted issues by making it easier for family members and friends to purchase and deliver cannabis to residents. Given that OHIP does not cover medical marijuana, there is no financial downside to purchasing recreational cannabis (that is supplied by the Ontario Cannabis Store) rather than medical marijuana. Irrespective of their intention for use, residents in long-term care facilities should enjoy the same accessibility to marijuana as others.
Perhaps this is yet another issue that the government will consider when revitalizing and improving living standards for residents in long-term care facilities.
Thank you for reading!
A special thanks to Jane Meadus and Professor Lorian Hardcastle for their presentation on Marijuana Use in Assisted Living and Long-Term Care Facilities through the Canadian Bar Association on March 12, 2020.
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.”
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!
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
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.
Thanks for reading,
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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.
Thanks for reading,
Other blog posts that may be of interest:
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.
Thanks for reading,
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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.
Thanks for reading,
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