Tag: long-term care
Yesterday, I blogged on Public Guardian and Trustee v. Cherneyko et al, 2021 ONSC 107. Today’s blog will focus on some of the breaches of fiduciary duty that were found by the Court. For those who have not read yesterday’s blog, this is a case that involves Jean, a 90 year old woman, and Tina, the attorney for property, who was purportedly given a gift of $250,000.00 just days before Jean was hospitalized for acute delirium and progressive cognitive decline.
While the purported gift of $250,000.00 to Tina was found to be invalid, the Court went on to find that Tina was in breach of her fiduciary duty to Jean by accepting the money. Tina was in breach because she knew that Jean was exhibiting signs of cognitive decline when they went to the bank. In the Court’s view,
“a person acting in a fiduciary capacity for a person actively demonstrating moments of irrationality should be very cautious about any big financial moves that person claims they want to make in and around such periods of demonstrated incapacity. Even if Jean was clearly acting in a competent manner during the few hours she attended the CIBC with Tina on August 27, 2019, I agree with the submissions of the PGT it is no answer to an accusation of breach of duty to assert that an attorney was simply acting in accordance with the wishes of the grantor of the attorney. Tina should have proceeded with caution at that time. I find she did not exercise the appropriate degree of caution and good judgment given the circumstances about which she knew.” (para 42)
The Court also reiterated Justice Penny’s comments in Ontario (Public Guardian and Trustee) v. Harkins,  O.J. No. 3313, that a fiduciary’s first duty is to see to the best interest of the person regardless of what their stated wishes may be. The Court was very critical of how a $250,000.00 gift to Tina could possibly benefit Jean, and expressed disapproval on how there was no evidence of any effort on Tina’s part in considering whether this money would better serve Jean if it was applied towards Jean’s in-home care instead of admitting Jean to a long term care home.
Of relevance to the unique circumstances that surround the care of others during Covid-19, the Court commented that,
“since March 2020 more than at any time in the past, any genuinely concerned person charged with caring for an elderly person in long term care would have at least considered the issue of taking whatever steps could be taken to remove the person from this situation if it was in any way possible.” (para. 47)
Instead, Tina allowed her adult son to move into Jean’s home, and she was found to be actively misusing Jean’s assets for her own and her family’s benefit which were additional breaches of her duties as fiduciary. The Court also disapproved of how Tina did not take any steps to sell Jean’s house in order to maximize or preserve its value which, reading between the lines, seem to be a concern for the uncertainty in today’s markets.
Thanks for reading! Stay safe!
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 is no denying that long-term care homes have been significantly impacted by the COVID-19 pandemic. Yesterday, the Globe and Mail released a sobering article on the impact social isolation has had on Canada’s long-term care and nursing homes, citing that approximately 82% of the country’s COVID-19 deaths have been linked to long-term care facilities.
Now, family members and advocates for Elders are learning that banning visitors from nursing homes could have inadvertently created negative consequences for residents. Prior to social distancing restrictions having been put into place, relatives and private caregivers were often-times relied upon at mealtimes. Through banning visitors, already short-staffed facilities lost the extra assistance provided by family members and private caregivers.
CanAge, a national seniors’ advocacy organization, is receiving concerning reports that some residents are not being fed, with mealtimes forgotten.
This is especially concerning given the risks that extreme temperatures bring as the summer months approach. Jane Meadus of the Advocacy Centre for the Elderly (“ACE”) explains that Ontario’s most recent design standards for new long-term care homes (last updated in 2015), still do not require rooms to be air conditioned, only common areas. For more on the difficulties extreme temperatures pose for residents and front-line workers alike, see here.
Heather Keller, who researches nutrition and aging at the University of Waterloo explained further difficulties social isolation poses to residents’ nutrition, especially those with cognitive impairments. When eating alone, residents tend to consume less, as they are not exposed to important social cues they would otherwise get if eating in a dining room setting.
Families and seniors’ organizations are calling on Ontario (and other provinces) to relax restrictions on visits, citing the risks to residents’ physical and mental health.
For more on our coverage of COVID-19’s impacts on long-term care, please see links to the below blogs:
Finally, for information on the Residents’ Bill of Rights within Ontario’s Long-Term Care Homes Act, 2007 see Stuart Clark and Doreen So’s podcast here.
Thanks for reading!
A recent survey commissioned by HomeEquity Bank suggests that the majority of older Canadians plan on staying in their homes as they age (otherwise known as aging in place) rather than downsizing and/or moving into assisted living or retirement communities. 93% of survey respondents aged 65 or older felt that it was important that they remain at their current home throughout retirement. 69% of them advised that their primary reason for wishing to remain at home was to maintain independence as they age.
The older respondents (75 years or older) advised that it was important to them that they remain in their current home to stay close to family, friends, and/or the community (51%) and that emotional attachment and memories were also contributing factors (40%).
In order to remain living at home as long as possible into retirement, advance planning in terms of finances and logistics may be necessary. A recent article appearing in Forbes suggests that the following steps, unrelated to financial planning, may be especially useful in facilitating successful aging in place:
- Maintaining social connections to avoid social isolation;
- Identifying who will help, whether family members, friends, or public services;
- Planning for the transition as needs change over time and identifying the resources and services available in the community;
- Preparing the home to accommodate increased needs (for example, by installing grab bars and a chair in the shower);
- Reviewing and updating the plan to age in place as may be necessary (due to a change in health, available support, or financial constraints).
Notwithstanding one’s plans to continue living at the family home, increasing longevity, a lack of liquidity, unrealistic expectations in terms of income sources after retirement, and the high cost (or local inaccessibility) of caregiving services may contribute to a decision to sell the home and relocate earlier than intended.
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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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Last week, Suzana’s blog post discussed longevity planning and Powers of Attorney for Personal Care (POA PC). She mentioned that, while financial and estate plans tend to focus on assets, a longevity plan or a POA PC is important in order to address other issues such as quality of life planning and health care instructions. Long-term care insurance is one instance where these plans overlap.
As life expectancy increases, planning for retirement becomes more important. The possibility that you may have health care or long-term care expenses later in life is becoming increasingly likely. Long-term care could include in-home care or moving into a long-term care facility, both of which come with high costs.
As one article, Do you need long-term care insurance?, posted on MoneySense.ca points out, long-term care insurance is more common in the U.S. than in Canada. However, although some costs for long-term care may be publicly funded in Canada, most such expenses will need to be paid for by the individual. Thus, there are several options to choose from when considering how to fund long-term care:
- Save for retirement in amounts sufficient to cover any expenses which may arise;
- Rely on your children or other family members to contribute financially; or
- Purchase long-term care insurance
To illustrate the importance of thinking about how to fund possible long-term care, consider the example of a couple, one of whom becomes ill and requires long-term care in a facility. After funding this care, the other partner may be left with very few financial resources to pay for their own retirement or long-term care costs further down the road.
However, if you wait too long to purchase long-term care insurance, the premiums may be more expensive than you would like and could turn insurance into a non-viable option. This leads us back to the importance of planning. Whether you decide to purchase insurance, or save to cover any eventual expenses yourself, it is vital to plan ahead and keep in mind that the amount you may require during retirement may be greater than you expect, especially if you or your partner end up requiring care later in life.
Thank you for reading.