Tag: Elder Law
All too often we hear stories of older persons suffering from cognitive decline who have unwittingly entered into long-term and disadvantageous contracts for services or equipment they do not even need. Sometimes, despite the best efforts of friends and family, loved ones with conditions such as dementia cannot be completely shielded from aggressive sales tactics that prey on vulnerability. This scenario has arisen repeatedly in the case of door-to-door sales and Councillors in several Ontario cities have set out to put a stop to it.
On Monday, Etobicoke Centre MPP Yvan Baker introduced a private member’s bill, the Door-to- Door Sales Prohibition Act, 2016, which seeks to ban door-to-door sales of water heaters, furnaces, water treatment devices, and the leasing or rental of air conditioners. These four products were selected as they have the highest number of complaints from consumers and have cost Ontarians over $3.1 million in 2015 alone. However, these numbers are based only on consumers who have made a report to the Ministry of Government and Consumer Services and therefore may, in fact, be much higher. The bill would also allow the Ministry of Government and Consumer Services to add additional products to the list as required. In large part, the motivation behind this bill has been to protect vulnerable people, particularly those with health issues, from being duped into contracts with no way out.
The bill itself would not lead to an outright prohibition on knocking on someone’s door for sales purposes; however, it would ensure that any contract executed as a result of
a door-to-door sale of any of the products listed, would be void. Furthermore, the bill contemplates implementing fines to be levied against both individual and commercial sellers in increasing amounts per offence. In this sense, the bill would act as a deterrent to salespersons engaging in these sorts of unscrupulous practices.
The bill still has a long way to go before it becomes law. It still must go to a second reading in June and if it passes, then to committee. From there, it would return back to the legislature for third reading.
Thank you for reading.
A recent article in the Toronto Star discusses how the current state of the law in Ontario makes elderly individuals vulnerable to predatory marriages. In Ontario, under section 16 of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”), a will is automatically revoked by the marriage of the testator.
There is a discrepancy regarding the capacity required to
make a will and the capacity required to marry. In Banton v Banton,  OJ No 3528, the court considered a situation in which an 88 year old man, George, married a 31 year old waitress at his nursing home, Muna. After their marriage, amidst concerns regarding his capacity, George prepared a will leaving everything to Muna. The court found that George did not have testamentary capacity and that his will was invalid, but found that the capacity to marry was a lower standard, requiring that an individual be capable of understanding the nature of the relationship and the obligations and responsibilities it involves. Accordingly, George and Muna’s marriage was valid and George was found to have died intestate.
The issue is that, even if wills executed following a potentially predatory marriage are found invalid as a result of incapacity or undue influence, the marriage may still be valid, and thus the intestacy provisions of the SLRA will be relevant. Under Part II of the SLRA, if a deceased passes with a spouse and children, the spouse is entitled to a preferential share in the amount of $200,000, in addition to a share of the residue of the property after payment of the preferential share.
The Star article suggests that the law nullifying wills on marriage makes it easy for a predatory bride or groom to take advantage of elderly individuals. It points out that Ontario law regarding revocation of wills upon marriage is lagging behind other provinces, namely Alberta, British Columbia and Quebec, none of which statutorily revoke wills after marriage. In Alberta in particular, it was noted that the remedial legislation was made after a study revealed that few people were aware that wills did not survive a new marriage.
It is therefore possible in Ontario that an elderly person who intends to leave their entire estate to their children could be caught unaware that their existing will was revoked by marriage, with no knowledge of the need to execute a new one. It is also possible that a testator may not even have the capacity to make a new will after entering a predatory marriage and will be left without recourse. With an aging population, elder abuse, which often takes the form of financial abuse, is a very serious concern. Consequently, it may be time for Ontario to consider measures to protect elderly or vulnerable individuals against predatory marriages.
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If you have been to a wedding or to university within the last several decades, you know Spirit of the West’s anthem “Home for a Rest“. If ever there was a song guaranteed to get you up onto your feet and the party started, this is the song. I know I personally cannot think of my early days at university without it playing somewhere in the background. It is for this reason that I read with great sadness the Globe and Mail’s report that Spirit of the West will be performing their final ever show this coming weekend.
Spirit of the West’s lead singer, John Mann, who is only 53 years old, has previously been diagnosed with early-onset Alzheimer’s. While the band had previously advised that they hoped to keep performing for as long as possible, only two years after making the diagnosis public, the band has advised Mr. Mann’s status has declined such that the time is right to bring the show to an end. Mr. Mann’s story echoes that of country legend Glen Campbell, who recently publicly played out his own battle with Alzheimer’s, releasing the gut-wrenching “I’m Not Gonna Miss You” as his final song, detailing his battles with the disease.
While hearing stories like those of Mr. Mann and Mr. Campbell are never easy, they provide us with the important opportunity to remind ourselves that no one in this world is necessarily immune from issues affecting their capacity. While it can sometimes be difficult to talk about, stories like these remind us of the importance of executing documents such as a Power of Attorney for Property and Power of Attorney for Personal Care to ensure that you are properly looked after should you become incapacitated.
While we may no longer be able to hear Spirit of the West perform live in person, their music will no doubt live on for years to come. So without further ado, take me home: Spirit of the West – Home for a Rest (Music Video)
According to the Ontario Human Rights Commission, approximately 60,000 of the 1.5 million older persons living in Ontario experience elder abuse. Of these reported cases, financial abuse is the most prevalent as it is the most common form of elder abuse in Canada.
As practitioners of elder law, we often see perpetrators who, sadly, are family members eager to get control of an aging parent’s finances. However, in other cases, the perpetrator is not a family member at all. Rather, he or she is an employee of a health care institution or a caregiver sent to provide in-home care.
Older persons in poor health are often isolated and vulnerable. This is particularly true with respect to those who live alone and are dependent on assistance from a health care worker, as well as those who reside in long term care facilities. Accordingly, many health care workers may find themselves in a position of power or influence over their charge. As a result, some Canadian provinces have enacted legislation that attempts to avoid the potential abuse of power that may emerge within these types of relationships.
For instance, in British Columbia, the Wills, Estates and Succession Act provides at section 52:
“In a proceeding, if a person claims that a will or any provision of it resulted from another person
(a) being in a position where the potential for dependence or domination of the will-maker was present, and (b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,
and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.”
Accordingly, in relationships of dependence, an automatic presumption of undue influence is established and the burden of proof is shifted onto the person upholding the will. As undue influence cases are notoriously difficult to prove, this legislation can facilitate the process.
In Quebec, the legislature has gone even further. Art. 761 of the Civil Code of Quebec provides:
“A legacy made to the owner, a director or an employee of a health or social services establishment who is neither the spouse nor a close relative of the testator is without effect if it was made while the testator was receiving care or services at the establishment. […]”
This restriction on testamentary freedom is viewed as a necessity given the need to protect vulnerable people.
In Ontario, there are no similar legislative provisions in the Succession Law Reform Act. However, the Courts have established the principle of suspicious circumstances which creates a presumption of undue influence when certain circumstances are present.
Thank you for reading.
According to the News Release, the Finding Your Way program is a “multicultural safety campaign that helps people with dementia stay safe and active, while helping to prevent the risk of wandering and going missing.” It notes that the program’s training services will be enhanced this year to include both first-responders as well as supportive housing and retirement home staff.
The Finding Your Way program is specifically focused on addressing and preventing individuals with dementia from going missing and states that 60% of people with dementia related memory problems become lost at some point. Their website provides some resources, including checklists for What to do when a person with dementia goes missing and What to do when reuniting after a missing incident. They also provide some suggestions of ways to reduce the risks associated with dementia. The first suggestion is to stay safe at home, by considering the best living arrangements for someone with dementia and ensuring that individuals with dementia maintain their health. The second suggestion is to be a part of the community while reducing the risk of becoming lost by carrying identification at all times, ensuring that someone knows where the senior with dementia is going, and dressing appropriately for the weather. The third suggestion encourages getting around in the community by urging seniors with dementia to get to know their neighbours and professionals in the neighbourhood (i.e. pharmacists, grocers, bankers), as well as participating in social activities.
The Alzheimer Society of Ontario’s website provides some “Dementia numbers in Canada” stating that in 2011, 14.9 per cent of Canadians 65 and older were living with Alzheimer’s disease and other dementias, with the figure expecting to increase. It also notes that one in five Canadians aged 45 and older provides some form of care to seniors living with long-term health problems. In 2011, family caregivers spent over 444 million unpaid hours looking after someone with cognitive impairment, including dementia. It is clear that dementia affects a great deal of people in Canada and in Ontario.
The Minister Responsible for Seniors Affairs stated in the News Release that “[o]ur communities have an important role to play in helping keep people with dementia safe, and this funding will help the Alzheimer Society of Ontario to deliver these resources to even more Ontarians.”
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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.
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Adult children of aging parents are often faced with important responsibilities. Ensuring that parents are adequately cared for is a task that many children lovingly undertake. As highlighted in this article in Forbes, key substitute decision planning ensures that the transition from independence to dependence, proceeds as smoothly as possible. Such steps should be taken immediately, and prior to the onset of dementia, or other incapacitating disorders, to ensure that one’s ability to provide instructions is unequivocal.
A power of attorney is a legal document that gives someone else the right to act on the grantor’s behalf. With the onset of incapacity, not only may the understanding of finances become increasingly difficult, but vulnerability to financial predators may increase. In fact, it is estimated that approximately 10% of the 1.5 million seniors in Ontario experience elder abuse. As such, allowing an incapacitated parent to maintain the authority to sign cheques and manage finances may be dangerous.
To preserve some degree of control, it is often the case that bank accounts are transferred into joint ownership between an adult child and their parent. This is a common practical step taken to ensure that the child who provides care to their parent has sufficient access to their parent’s funds to satisfy expenses arising. However, given the seminal decision in Pecore v. Pecore (SCC), at the time the bank account is transferred into joint ownership, careful notes must be taken to ensure that the evidence of testamentary intention regarding the account is clarified.
Meeting with an experienced lawyer that can explain the types of powers of attorneys, and the associated responsibilities, ensures the adult child has the appropriate powers to assist their parent. As well, the taking of detailed notes by a lawyer or financial institution is a prudent step to avoid possible estate disputes at a later date. While often we focus our efforts on estate planning, substitute decision planning is equally important.
The increasing prevalence of Alzheimer’s disease and other dementias means that policymakers and various sectors – including the legal community — have to think about how to create a more dementia-capable society.
For instance, I recently blogged about DementiaHack, a Toronto-based hackathon designed to bring medical experts on dementia together with developers and designers to think of innovative technological products to address the needs of individuals living with dementia, caregivers and researchers.
For those who are interested in learning more about dementia, the Toronto Star recently ran an excellent series of articles about local and global responses to the increasing prevalence of dementia.
I found it particularly interesting to read about the lessons that can be learned from Japan’s experience, where dementia currently affects 4.62 million people. As the article notes, Japan’s health ministry and 11 other ministries and agencies implemented a strategy in 2012 to address the challenges of dementia. The government also introduced a long-term care insurance program in 2000 that requires residents to pay monthly insurance premiums after they turn 40. By contributing to the program, residents become eligible to access services such as dementia daycare.
Beyond governmental action on dementia, the Star also profiled the Dementia Support Caravan initiative in Japan, which aims to educate and empower people across the country to better support the needs of people living with dementia. And for a Canadian spin on the Japanese experience, be sure to check out this article about “Paro”, a robot that was inspired by a Japanese engineer’s encounter with a Canadian harp seal and that is now being used in dementia care.
The Toronto Star ended its series on dementia with an editorial calling on the provincial and federal governments to create a national strategy. It remains to be seen if policymakers will heed the call to action, but the series offers remarkable insight into how other countries are responding to the increasing prevalence of dementia.
Thank you for reading and have a great weekend.
Umair Abdul Qadir
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.
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Here are some sobering facts: according to the Alzheimer Society of Canada, 747,000 Canadians were living with Alzheimer’s disease and other dementias in 2011. If nothing changes in Canada, this figure is expected to rise to 1.4 million people by 2031.
Beyond the economic costs, dementia can put immense pressures on family caregivers. According to the Alzheimer Society, family caregivers spent 444 million unpaid hours in 2011 towards the care of someone living with dementia, a number that could rise to 1.2 billion unpaid hours per year by 2040.
Given the increasing prevalence of dementia, many sectors – including the legal community – are thinking about how to improve the quality of life for people with dementia and create a more dementia-capable society. For example, I recently came across an interesting event called DementiaHack, a hackathon that will be taking place in Toronto from November 7 to 9, 2015.
For those who are unfamiliar with the concept, a “hackathon” is an event that allows tech types – such as computer programmers and software developers – to work collaboratively on new projects over a short timeframe. Now in its second year, DementiaHack brings together leading medical experts on dementia with developers and designers, challenging them to develop new and innovative products to address the needs of individuals living with dementia, as well as family caregivers, institutional caregivers and researchers.
For this year’s event, hackathon teams will work intensively over the weekend to develop innovative solutions to the challenges of dementia. The weekend will culminate in science fair demos on Sunday, November 8. Then, on November 9, the hackathon finalists will show off their wares to an audience of potential investors and customers. The most successful teams will be eligible to receive a number of different prizes, including a grand prize that consists of a business trip to the United Kingdom to pitch their project at a health conference.
It is exciting to see the work that is being done to support the needs of people living with dementia. If you are interested in learning more about DementiaHack, visit their website for more information about this year’s event. And be sure to check out the Youtube video for the demonstration for last year’s grand prize winner, CareUmbrella, a project that used smartphones and Near Field Communication (NFC) tags to help improve the lived experience of people living with dementia.
Thank you for reading and have a great weekend.
Umair Abdul Qadir