I recently stumbled on an article by Eileen AJ Connelly, where she discusses the issues that might arise with aging relatives or friends. I found Ms. Connelly’s article to be interesting because Canada is an aging society, but more particularly because it provides her readers with a strategy on how to approach the subject of managing finances with an elderly relative and what signs to watch for if it is suspected that an elderly relative might be having trouble handling finances.
In her article, Ms. Connelly lists the following “warning signs” to watch for if you suspect an elderly relative, client or friend may be having trouble handling finances:
1. Unopened mail;
2. Late or unpaid bills; collections actions;
3. Confusion or lack of interest about what bills have been paid;
4. Bounced checks;
5. Disorganized personal paperwork;
6. Uncashed cheques or unclaimed property reverting to the government;
7. A large number of magazine subscriptions; and
8. Unusual or increasing direct mail or shopping-channel purchases.
The theme behind Ms. Connelly’s article is not to wait to get involved, but be proactive. If you have noticed a possible problem with an elderly relative or friend you should not wait to have the dreaded conversation of managing finances. The longer you wait, the greater the risk that any existing problems will only accumulate. Ms. Connelly states that most elderly relatives, like parents, are afraid that they are bothering their children and it’s up to the children not to assume that your offer for help will be refused.
Thank you for reading and have a great weekend.
There were several estate related web postings that came to my attention this week.
The Elder Abuse Awareness component of the Federal Government’s New Horizons for Senior’s Program announced 16 new projects directed at the prevention of elder abuse. Somewhat to my surprise (largely because I assumed it was an area under provincial jurisdiction), the Federal Government has significantly increased funding to this program.
In Britain, a committee is being charged with the task of considering future changes aimed at preventing the reigning monarch from sealing wills. Her Royal Highness Queen Elizabeth II directed that the Last Wills of both Princess Margaret and the Queen Mother be sealed, a decision that has been criticized in many quarters.
And lastly, let’s not forget the Last Will of George Washington which was drafted by the late President himself with "no professional character being consulted", his Will being an endeavour that "occupied many of my leisure hours." Clocking in at 23 pages, Washington’s Will also had an addendum detailing the location, description and value of his numerous properties (knowledge gleaned from his days as a land surveyor and speculator).
Have a great weekend!
David M. Smith
My mother used to volunteer with Goodwill, where one of the projects was a contents sale. A team from Goodwill would organize a home’s contents for sale – I have a frying pan purchased from one of those sales.
Several organizations exist to assist with different aspects of the moving process. One such example is Marsha’s Helping Hand, which helps when clients, particularly elderly people, want to downsize.
There are a lot of memories to manage and items to be packed up, distributed or possibly sold. Often the house itself must be sold. Many scenarios are possible – elderly people are downsizing or a home is being sold as part of an estate.
Estate sales can be slow however. Recently, the New York Times focused on this issue: delays can occur in transactions because of the dynamics between distant beneficiaries and the estate trustee, or even because of the emotional energy required by heirs who are assisting with the removal of the Deceased’s belongings.
There are understandable reasons for the delays in the estate sale process. Not least of which is that often the people who want to do the job are themselves busy with multiple responsibilities, be it child care or parent care or the demands of a paying job. Help is available though. Organizations, which cater to these increasing needs can assist, according to a recent Globe and Mail article.
These practical issues often dovetail with legal duties of the Estate Trustee, a role that may be more manageable when a plan is in place. Costs should always be considered though because ultimately, the Trustee has a duty to account to beneficiaries.
Enjoy your day.
The administration of drug therapy in the elderly is a complex undertaking. As a person ages, they undergo physiological changes; changes in body composition, gastrointestinal, liver and/or renal function that can alter both the therapeutic and toxic effects of drugs. Created in 1991, and most recently updated in 2003, the Beers List includes drugs that ‘are either ineffective in the elderly or put seniors at an unnecessarily high risk when safer alternatives are available’ (CBC News, September 2007). The list, compiled by a group of American experts led by Dr. Mark Beers, was created to determine which drugs should be used in nursing homes, since seniors are known to be particularly at risk for adverse side effects, including falls (see blog of November 28, 2008), depression, and even death.
Last year, the Canadian Institute for Health Information reported that the Beers List has resulted in a reduction in use of the listed drugs, as well as a reduction in the number of adverse side effects linked to these prescription medications. It is, however, not all good news across the board. According to CIHI, 25% of seniors are still receiving at least one drug on the Beers List. Further, a 2005 CBC investigation found that in spite of making up only 13% of the population, seniors accounted for over 44% of all deaths reported to Health Canada’s adverse drug reaction database between 1999 and 2003.
With families gathering this month for various holiday celebrations, it may be an appropriate opportunity to suggest a ‘brown bag review’ for mum or dad. Just like the name suggests, a pharmacist or geriatrician can review all of mum’s medications (both prescription and non-prescription, including herbal products) and check for correct dosage, frequency, duplication of drug therapy, discontinued products, and potential interactions. It goes without saying that changes to a drug regimen should only ever take place under the direction of one’s physician.
Note: In 2007, CBC News ‘Canadianized’ the Beers List to reflect only those drugs available here in Canada, and also took the liberty of adding a number of benzodiazepines (medications that are prescribed for the treatment of anxiety and sleep disorders and have been found to increase the likelihood of a fall four-fold) that are available here, but not in the States. Click here to access the modified version.
Stay tuned Thursday for a much lighter-hearted healthcare blog.
Jennifer Hartman, guest blogger
Listen to Dependency and Undue Influence
This week on Hull on Estates, Diane Vieira and Paul Trudelle discuss dependency and undue influence in the case of Bale vs. Bale. This topic is also discussed by Paul Trudelle in his blog post:
If the link does not work, cut and paste the following URL into your browser:
By all indications, the abuse of Powers of Attorney to misappropriate assets is on the rise.
When a grantor gives powers to an attorney to manage the grantor’s property, it allows the attorney to assist the grantor in managing property, and in fact to take over management of property altogether if the grantor does not monitor the situation. Often the very goal of the grantor is to allow someone else to completely take over management of one’s property due to age, potential incapacity or other reasons, so the grantor has no intention to monitor.
This is often a reasonable choice, and the law holds attorneys to a high standard to protect grantors. However, the potential for abuse is immense. Abuse can be willful or simply negligent, but in either case the damage can be devastating and irreversible. In many cases attorneys who stray from their duties are never made to account, although they have that obligation. Often they live with the grantor and have little or no oversight. The legal fees in securing justice are generally high, and the chances of recovering on a judgment can be low. In the result, legal proceedings might be impractical, however blatant abuse may be in a given case.
The best defence against this problem is awareness, so these varied results from a quick internet search are somewhat encouraging: a Florida law firm website; an excellent Vancouver Sun article; a synopsis of a TV news story; the New York Attorney General’s website; a news report of a Philadelphia trial; and a news release from Prince Edward Island’s provincial government commenting on the problem for World Elder Abuse Day.
This is the tip of a very large iceberg: by all indications lawyers, financial institutions, governments and of course the public will be wrestling with a growing problem for years to come.
Thanks for reading.
A massive $110 million lawsuit has been brought by the Attorney General’s office in California against a “living trust mill that tricked senior citizens into using their retirement savings to buy annuities that often made less financial sense for the elderly victims but earned the con artists substantial commissions and other income.”
Estate Planning Law Firms.com quotes the Attorney General as saying the following:
“The perpetrators of this fraud deceived seniors into using their hard-earned retirement nest eggs to buy unneeded annuities that actually undermined their financial security. Living trust mills such as this one violate not only the law, but the trust of their elderly victims.”
What surprised me was the apparent scope of the alleged organization being sued by the Attorney General: between 250 and 300 sales agents and another 80 telemarketers were involved, allegedly soliciting elderly consumers through mailings, seminars, telemarketing, presentations at senior centers and other means, marketing their services as a way to avoid probate and estate taxes, then eventually convincing seniors to buy annuities that were, according to the Attorney General, not in their best interest.
Without commenting on this particular case, there does seem to have been a disturbing and growing trend in recent years of attempts to deprive the elderly of the considerable wealth concentrated in their hands.
One more reason, if any were needed, to take great care in choosing investment and estate planning advisors.
Thanks for reading.
During Hull of Estate and Succession Planning Episode 32, we continued to discuss the Elder Law Conference with an emphasis on what the Canadian Centre for Elder Law Studies is currently working on, highlighing their past work and discussing its mission of enriching and informing the elderly in the law.
Continuing with our review of the Canadian Centre for Elder Law Studies’ paper on viatical settlements, we note that the paper is broken down into 7 parts, starting with a brief introduction and an examination of typical viatical settlements. There is also a review of American academic articles and the study looked at the historical developments of viatical settlements in the U.S.
The study goes on to examine the current law in Canada and looks at leading policy arguments for and against removing the legal barriers to viatical settlements in Canada. The study also examines in detail the leading Canadian model for law reform drafted in 2001 by Ontario’s Financial Services Commission. The last two parts of the study include a review of several issues for reform and a conclusion to the study paper.
The origins of the project arose out of the Program Committee of the British Columbia Law Institute, whereby they identified examining the possibility of legalizing and regulating viatical settlements as an innovative area for legal reform.
After having reviewed the study paper on viatical settlements, it is clear that, while this is an innovative area of legal reform, certainly in the United States, the concept of viatical settlements is a growing trend and one that will no doubt be considered over the next few years as the increase in population puts pressure on the market forces.
Given that viatical settlements are rare in Canada, the study paper looked at the elements of a typical viatical settlement from the United States as providing the reference point. Again, while there are different approaches in the United States, the study notes (at page 3) that one commentator who recently reviewed the American market concluded that the typical viatical settlement contains six steps.
We will look at the six steps in our next blog.
All the best, Suzana and Ian. ——–