As we age, many of us begin to experience the normal consequences of aging, including some memory loss. Unfortunately, many of us may end up suffering from Alzheimer’s and related dementias. As a result, capacity has become a bigger problem among seniors.
There are ways to manage decision-making for a senior who has lost capacity to make his or her own decisions about care or property. If the person executed a power of attorney, their attorney can step in. If there is no power of attorney, a guardian can be appointed by the court. However, the imposition of a substitute decision maker can be a significant restriction on an older adult’s liberty, and some seniors may resist that imposition.
An article in The Walrus earlier this year considered this issue, and the impact a finding of incapacity can have on a senior’s autonomy in Canada.
One of the concerns discussed in the article is that “some seniors find that, once declared incapable, they are unable to challenge the decision.” In Ontario, we have the Consent and Capacity Board, which is an independent tribunal that, among other things, reviews various determinations regarding an individual’s capacity. However, this is apparently a rarity in Canada. The only other similar body is located in the Yukon.
Another issue raised by the Walrus article is with the lack of a standardized system for assessing capacity. The person doing the assessment can vary (doctor, nurse, social worker, etc.), as well as the tests conducted. This is made even more complicated by the fact that there are differing levels of capacity for different tasks (e.g. making a Will, managing property, getting married, granting a power of attorney for personal care).
Unfortunately, the lack of attention paid to the issue of aging and capacity appears to be systemic. As cynically, but perhaps also realistically stated in the Walrus article: “It can seem like a great deal of attention is paid to other institutions that house vulnerable segments of the population, such as children in daycares. But there’s no future in aging; there is next to no potential that a senior might one day cure cancer or be the next prime minister. Reform in elder care may be desperately needed, but it hasn’t been forthcoming.”
There is a fine balance to be struck between restricting seniors’ autonomy, and protecting vulnerable people. A collaborative “supported decision-making model”, as discussed in the article may be one way of doing this. I hope that as more attention is drawn to these issues, there will be greater awareness, and increased progress and reform for our seniors.
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I recently read an interesting article by Helene Love titled “Seniors on the Stand: Accommodating Older Witnesses in Adversarial Trials”, that explored the intersection of age and its effects on witness testimony in trials. Helene’s article considers whether the legal and procedural rules that have been developed to ensure that only the most reliable evidence is used in a trial may disproportionately be excluding evidence from seniors. The paper assessed the risks associated with aging, as well as the practical and legal issues related to aging witnesses, and offered suggestions to accommodate senior witnesses within our current legal framework. I will summarize some of the key considerations below.
The objective of a trial is to discover the truth. Examinations of witnesses under oath allow the trier of fact to test the reliability of witnesses, making examinations during trial a fundamental aspect of the modern day trial. Interestingly, the basis for requiring live testimony of witnesses dates back to the 16th and 17th century trials by jury, whereby jurors were not prevented from relying on untrustworthy sources of information, and abuses of power were common. In order to enhance the reliability of trials and control the quality of evidence, judges created the requirement for witnesses to provide evidence in person. The reliability of a witness is typically assessed by a judge based on a witness’s ability to observe, recall, and then recount and event in the courtroom.
Reports indicate that within the next 20 years, the number of Canadians aged 65 years or older will double, meaning that there will be more senior citizens involved in the justice system. Given the significant increase in older persons acting as witnesses, there are a number of ways that aging can impact a witness’s ability to provide evidence during a trial.
Some of the risks associated with aging include:
- Attrition – depending on the complexity of a case, it can take months or even years to finally reach a trial date, meaning that there are increased chances that an older witness, particularly those over 80 years old, have an increased chance of dying before having a chance to take the witness stand.
- Changes to the Sensory Organs and the Brain with Age – biological changes to sensory organs and the brain can result in a decrease in perceptual acuity and gaps in memory.
- Mobility Issues – Health Canada reports that by age 75, 29% of men and 38% of women report at least one physical limitation, making it more difficult to attend court in person, particularly if that appearance is extended over a period of time.
- Strokes and Dementia – Individuals aged over 65 are ten times more likely to have a stroke, and individuals who have had a stroke are more than twice as likely to develop dementia. Dementia can involve a range of symptoms, including physical limitations such as limb stiffness to the most commonly known type of dementia, Alzheimer’s Disease. Individuals with cognitive impairments would not be competent to testify in a trial.
This begs the question, how can the legal system accommodate senior witnesses while maintaining accuracy and reliability as top priorities in the pursuit of the truth? I will address some of the main solutions proposed in the civil context (although there were a number of great alternatives proposed in the criminal context that I encourage you to read).
- Expedited trial scheduling or proceeding by way of summary trial. Although not discussed in this article, another possibility in Ontario may be to request a case management judge who can determine whether the case should be heard in an expedited manner.
- Obtain witness evidence at an earlier point in time through discoveries, pre-trial examinations, or affidavit evidence to be relied on at a later date.
- Use the principled approach to hearsay. The rule against hearsay states that earlier statements made by others outside of court are presumptively inadmissible because they were not made under oath, in the presence of the trier of fact and/or tested by cross examination. However, hearsay statements can be admitted for their truth if they are sufficiently necessary and reliable, as outlined in the leading Supreme Court of Canada case of R v Khelawon, 2006 SCC 57
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 In the 1692 Salem Witch Trials, 14 women and 6 men were executed on charges of witchcraft based entirely on supernatural visions that indicated the presence of witchcraft, the reliability of which went untested during the trial.
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 Daniel Estate (Re), 2019 ONSC 2790 (CanLII), the applicants applied to have their estate trustee and attorneyship accounts passed. As stated by the judge hearing the application, “Unlike many applications to pass accounts, this is a “good news” story.”
The applicants were the friends and former neighbours of a high net worth, elderly couple, Isabel and Wayne. For over 20 years, the applicants provided extensive personal assistance to the elderly couple. “In many ways, [the applicants] acted like loyal and dutiful family members.” In addition to completing simple neighbourly tasks, the applicants helped the couple in many other ways. They eventually became the attorneys for property and personal care for the couple. When Wayne died, the applicants took on the role of acting as his Estate Trustee.
The application to pass accounts was supported by an affidavit from Isabel, who indicated that she was content with the claim for compensation being made by the applicants. The application materials also included an accounting analysis prepared by a Chartered Accountant, who reviewed the accounts in detail, and also an analysis by a Certified Case Manager and Certified Canadian Life Care Planner, who assessed the value of the personal services provided by the applicants.
In the end, the court awarded the applicants compensation for administering Wayne’s estate of $129,775; compensation for acting as attorneys for property of $435,772.36 and compensation for acting as attorneys for personal care, for a total of $757,659.
With respect to costs, the court awarded the applicants their costs of $125,021 for the unopposed passing of accounts. According the judge, “While this amount seems at first blush high, I note the accounting report alone was worth $45,000. In my view of the detailed, thorough and helpful material filed and in view of the hours it took to assemble, digest and present the financial information provided, I find that the fees and disbursements claimed are reasonable.”
The court appears to have been impressed by the extent and quality of the assistance provided by the applicants to Isabel and Wayne. Further, the court appears to have been impressed with the detailed and extensive materials put before the court in order to justify the claims on the passing.
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This week on our podcast Stuart Clark and I discussed the statutory Residents’ Bill of Rights that is within the Long-Term Care Homes Act, 2007.
The importance of this Act should not be overlooked by anyone who is has a loved one in a long-term care home. Section 3 of the Act gives rise to enforceable rights as between the resident and the care home as if they have entered into a contract where the home has agreed to fully respect and promote 27 enumerated residents’ rights.
As an example, the first 4 rights are:
- the right to be treated with courtesy and respect and in a way that fully recognizes the resident’s individuality and respects the resident’s dignity;
- the right to be protected from abuse;
- the right not to be neglected; and
- the right to be properly sheltered, fed, clothed, groomed and cared for in a manner consistent with his or her needs.
While it may be difficult to determine what the Residents’ Bill of Rights means in day-to-day reality, it is a meaningful starting point for any advocate.
An important resource is the government of Ontario’s Guide to the Long-Term Care Homes Act, 2007 and Regulation 79/10, which is available for download here.
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Humans are social beings. Some of us enjoy interacting with others, with animals, with virtual reality experiences, or all of the above!
I read a heartwarming story recently from the New York Times which featured a robot caregiver for the elderly named Zora. Zora was introduced to a nursing facility outside of Paris and she was rather well received.
The residents of this particular facility have dementia and other conditions that require twenty-four hour care. Zora can converse with the residents through the assistance of a nurse who types on a laptop for the robot to speak. Many residents formed an attachment to Zora and even treated the robot like a baby.
According to the makers of the Zora robot, it is the first robot in the world that takes care of people.
While a robot may not be able to replace the tender, love, and care of one’s family, it is easy to believe that a robot can make any one’s imagination wander, stimulate play, and even be a friend.
I say that as someone with very fond memories of Toy Story. The first Toy Story came out in 1995 and Toy Story 4 is about to be released in 2019 if you want to check out the trailer here.
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Some people would be surprised to know that there are now more Torontonians ages 65+ than children aged 15 and below. By 2041, the number of people over the age of 65 is expected to double. Nationally, seniors are projected to constitute one-quarter of the Canadian population by the year of 2036.
The City of Toronto found that a plan and an appropriate strategy were needed to be put in place, in order to ensure that the needs of the growing population of seniors are being met.
The City first addressed this question on April 12, 2011, when Council directed the Executive Director, Social Development, Finance and Administration to develop a comprehensive strategic plan for seniors in consultation with other levels of government, school boards, relevant community organizations and individuals, businesses and academia that is adequately funded, financially feasible and able to be implemented. A particularly important aspect of Council’s direction was the request that the strategy include helping seniors remain in their own homes longer.
On May 7, 2013, Council unanimously approved the Toronto Seniors Strategy: Towards an Age-Friendly City. Between 2013 and 2017, various progress reports were generated and on July 4, 2017, City Council adopted the Tenants First Phase 1 Implementation Plan. A particular area of interest in this plan was that the City Council approved the strategic integration of City programs and services for seniors and responsibility for management of the 83 seniors-designated buildings within the Toronto Community Housing Corporation portfolio under a new Seniors Housing and Services entity that is separate from Toronto Community Housing and is more directly accountable to City Council.
Most recently, a report for action was generated on April 30, 2018 indicating that the manner in which the City currently organizes its housing and services for seniors does not meet their needs and this problem will be exacerbated as the population continues to grow over the next 10-15 years.
The following recommendations were made:
- City Council to approve Version 2.0 of the Toronto Seniors Strategy and direct City Divisions and Agencies to implement the 27 high-impact recommendations contained in the report;
- City Council to direct the Executive Director, Social Development, Finance and Administration to work with the Executive Director of Financial Planning to report back on the financial impact of fully implementing the 27 high-impact recommendations once the service delivery plans have been fully developed for the medium-term initiatives.
It is encouraging to see that the City of Toronto is taking initiatives such as these to care for its aging population, moving forward. To learn more about this important endeavour check out the Toronto Seniors Strategy Version 2.0 report here.
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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 Retirement Homes Regulatory Authority was established in 2010 by the Ontario government under the Retirement Homes Act, 2010, S.O. 2010 Chapter 11 (the “Act”), and acts as a licensing body for retirement homes in Ontario.
The fundamental principle of the Act is to ensure that a retirement home is “operated so that it is a place where residents live with dignity, respect, privacy and autonomy, in security, safety and comfort and can make informed choices about their care options.”
Section 67 of the Act states:
- (1) Every licensee of a retirement home shall protect residents of the home from abuse by anyone.
(2) Every licensee of a retirement home shall ensure that the licensee and the staff of the home do not neglect the residents
Section 67 encompasses financial abuse as well. According to Regulation 166/11 of the Act, financial abuse is defined as “any misappropriation or misuse of a resident’s money or property.” Pursuant to the Act, a licensee must establish a trust fund if they are in charge of money from a resident; however, the Act is silent with respect to loans between a resident and the licensee.
Due to the normal process of aging, financial decision-making ability naturally declines and, as such, it is important that places of trust, such as retirement homes, avoid situations that may lead to financial abuse. Residents of a retirement home are dependent on the operator of the home for housing, safety and care. This dependency creates an expectation of trust between the staff and the residents. Moreover, many elderly individuals may lack mobility, suffer from visual impairment, or may not have family that comes and visits them, resulting in more of an increased attachment or trusting relationship with individuals at the residence.
Where a retirement home resident is competent, the issue of whether financial abuse exists will depend on the circumstances surrounding the home. For example, it is a possibility that a perfectly competent retirement home resident may have a friendship with a staff member of the residence, and desire to give them a monetary loan or gift as a sign of friendship.
It is important not to assume that every case of an elderly person in a residence providing a loan to staff is financial abuse, as assuming vulnerability in adults may lead to paternalism. Furthermore, pursuant to the Quebec case of Quebec (Commission des droits de la personne et des droits de la jeunesse) v. N. (R.), 2016 CarswellQue 13351, there is a “need to balance the protection of aged persons against exploitation, on the one hand, and the scrupulous need to respect their autonomy in exercising their legal rights on the other hand.”
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CBC News recently reported on two cases of elderly couples who were forced to live apart in different care facilities in British Columbia.
William and Anita Gottschalk were forced to live apart after 62 years of marriage because the family could not locate a single facility that would accommodate their different levels of need. William, 83, suffers from dementia and lymphoma and requires greater care than his wife Anita. According to CBC News, William was recently transferred to a facility, blocks from Anita, to allow him to receive the care that he requires while he waits for an opening in Anita’s facility. To date, they have been separated for eight months.
Alfred, 95, and Emma, 87, Sagert also found themselves in a similar position when Emma was no longer able to return to the facility that she shared with Alfred after suffering several small strokes. The Sagert family did the best that they could to transport Alfred to Emma’s new facility “because they just needed to be together”. Happily, Alfred and Emma were also reunited sometime this spring, although the family believes that Emma’s health diminished as a result of her loneliness during their separation.
BC (Fraser Health) officials advised that reunification of couples like the Gottschalks and Sagerts are a priority and that 92 couples have been reunited in the course of the past year and a half. Interestingly enough the BC Community Care and Assisted Living Act, contains a Patient’s Bill of Rights which specifies a person’s right “to be treated in a manner, and to live in an environment, that promotes his or her health, safety and dignity”.
Hopefully it will be only a matter of time before the Gottschalks are reunited.
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