Thank you to everyone who joined us last week for the 9^th Canadian Elder Law Conference. It was a great turn out. Registrants came from as far away as Australia and Israel. Record numbers participated by webinar. Sponsorship allowed us to award registration bursaries to 21 people, including police officers, social workers, students and allies from non-profit agencies. Some of you were not able to attend the event joined the conversation about conference themes on Twitter. You can see the best ones in this Twitter Moment and under the hashtag #elderlaw2019.

This year’s conference, entitled Bridging the Gap: Elder law for Everyone, highlighted access to justice for older adults.

The Honourable Justice Cromwell’s Keynote

We were beyond thrilled that the Honourable Thomas A. Cromwell, former Supreme Court of Canada Justice, provided an opening address on the second day of the conference. Justice Cromwell noted that access to justice is a major issue today, and is a multi-faceted issue. Different people encounter different barriers. Access to justice can mean:

• Meaningful legal remedies;
• Courtroom physical accessibility;
• Availability of plain language legal information;
• Access to childcare;
• Culturally appropriate remedies; or
• Service availability in your first language.

Older adults face particular barriers to accessing justice. For example, the physical accessibility of the courthouses, transportation issues, cognitive changes, lengthy trial delays (particularly for people diminishing capacity), and vulnerability to abuse and undue influence.

Honourable Justice Cromwell noted that “transformative justice is urgently needed.” He questioned why access to justice is not improving in Canada despite decades of excellent work developing reports which identify the problems. He suggested that one answer is that our leaders do not recognize the need for change. He spoke to a need for public and political desire for change. He challenged the diverse groups working on access to justice to come together to create an access to justice movement that will be a “unified force for change”.

Panel Discussion of Human Rights for People Living with Dementia

Day 2 featured a panel discussion in human rights for people living with dementia, moderated by Emily Clough, a partner at Clark Wilson LLP.

• Mario Gregorio, a person living with dementia, shared with the audience his experiences of living with dementia, noting people living with dementia need to know their rights.
• Jane Meadus, a lawyer with Ontario Advocacy Centre for the Elderly (Toronto), explained that people living with dementia face misconceptions about capacity, paternalism, improper informed consent, and discrimination in accessing health care. People living with dementia often lack access to legal advice.
• Barbara Lindsay, the Director of Advocacy and Education for the Alzheimer Society of BC, outlined the services they provide to people living with dementia, including dementia education, resources and support groups. Lawyers and notaries can better help people with dementia by taking their time during meetings, having patience, and creating a accessible and supportive environment.
• Laura Track, a lawyer with the BC Community Legal Assistance Society, described her office’s Human Rights Clinic and the BC Human Rights Tribunal’s latest on supporting representative complainants who may have capacity issues.

Creating a Guardianship Tribunal: Anne-Isabelle Cloutier

Anne-Isabelle Cloutier, the recipient of the Gregory K Steele Student Paper Prize in Elder Law (sponsored by Clark Wilson LLP), presented her paper on the potential of creating a guardianship tribunal for Canada. She argued that the current guardianship regime often fails to uphold principles of presumption of capacity and respect for autonomy, and instead defers to medical and psychosocial assessments which fail to recognize the rheostat nature of capacity. She explained that a guardianship tribunal would better be able to protect rights because tribunal members would have specialized training on capacity and be more sensitive to the needs and rights of vulnerable adults.

Capacity to Retain and Instruct Counsel

Returning Canadian Elder Law Conference Alumnist Clare Burns presented with Kevin Love of BC Community Legal Assistance Society. They discussed the legal, ethical and practical issues related to representing adults who may have capacity issues. The session covered recent court decisions of note and identified strategies lawyers can employ in order to more effectively advocate for their clients who have disabilities that can impact their capacity to understand information and make decisions.

To find out more about our conference and read interviews of some of our presenters, visit CCEL’s conference webpage. Our conference partner, the Continuing Legal Education Society of BC, will replay the conference sometime in 2020, providing those of you who missed this fabulous learning opportunity, with the chance to catch up.

Thanks to presenters, sponsors, registrants, and of course, our conference Chairs, Jan Goddard, Hugh McLellan and Geoff White.

The post Access to Justice at the Canadian Elder Law Conference first appeared on British Columbia Law Institute.

Introduction

The British Columbia Public Guardian and Trustee is pleased to be a sponsor of the 2019 Canadian Elder Law Conference.

In Services to Adults the Public Guardian and Trustee (PGT) protects the legal, financial, personal and health care interests of adults who require assistance in decision making. The following services are provided from one or more of our three offices located in Vancouver, Victoria, and Kelowna:

Assessment and Investigations Services
Each year many people call the Public Guardian and Trustee (PGT) to find out what they can do to help a friend or relative who is not able to manage their finances on their own or to report possible abuse, neglect or self-neglect of an adult who may not be able to manage independently. British Columbia’s laws give the PGT and designated agencies (health authorities and Community Living BC) the ability to respond to concerns about a vulnerable adult.

The PGT can provide initial support by:  

• providing information on options available to help the adult;
• consulting on problems related to complex risk situations involving abuse, neglect or self- neglect; or initiating an investigation, if required.

The PGT will start an investigation when:

• there is a concern that the adult may be mentally incapable of managing their financial affairs;
• there is a specific, urgent or immediate need with assets at risk; and
• there is no other suitable person (family or friend) who has the authority or is willing and able to act on the adult’s behalf

The purpose of an investigation is to better understand the risk and determine how the adult can be best supported by family, friends and or community in the most effective and least intrusive manner. Sometimes PGT being appointed as committee of estate is the best option given the adult’s circumstances.

 
Personal Decision Services

BC’s care facility admission legislation came into force on November 4, 2019. To coincide with this, the PGT launched our new Personal Decision Services department to include health care decision making and new duties regarding care facility admission. The PGT is named under both parts of the Health Care (Consent) and Care Facility (Admission) Act as either temporary substitute decision-maker (TSDM) of last resort for health care decisions under Part 2 or substitute decision-maker (SDM) of last resort for care facility admission decisions under Part 3. If there is no willing, available and qualified substitute or there is a dispute between equally ranked family decision-makers, the PGT can authorize a suitable TSDM for health care treatment decisions or a suitable SDM for facility admission. If it is unclear who to choose between equally ranked substitutes, the PGT will make the substitute treatment and/or facility admission decisions. More information about how we are operationalizing our new role under the care facility admission provisions are outlined in our new publication Care Facility Admission and the Role of the PGT

Financial Management and Personal Decision Making Services

The Public Guardian and Trustee (PGT) provides a wide range of direct financial management and legal decision-making services for vulnerable adults. For the majority of PGT adult clients, the PGT is committee of estate under the Patients Property Act with responsibility for the legal and financial management of our clients’ affairs. When the PGT is appointed committee of estate, PGT staff work with the client to establish an effective management plan that includes managing property and investments, paying bills, securing assets and pursuing compensation where appropriate.

As committee, the PGT supports and promotes a client’s independence and involves the client where possible in key decision making. The case manager will meet with the client to identify needs, priorities, the level of participation and to develop a management plan. If assets are secure and the adult is able, the PGT will minimize its involvement in day to day decisions such as grocery shopping and entertainment.  Many clients still maintain and use their own bank accounts.  

In situations where there are financial decisions that may impact personal or health care decisions, the PGT works collaboratively with the adult and/or others who have legal authority, such as a committee of person or representative, to ensure that decisions the PGT makes are in the best interests of the client.   

Review of Court Applications and Monitoring of Private Committees

PGT is served with applications for the appointment of a committee and reviews the documentation submitted to court to determine whether the requirements of the Patients Property Act have been met, whether the applicant is the appropriate party to act as committee, and whether provisions should be included in the order such as bonding or restricted access to assets.

The PGT’s Private Committee Services department (PCS) helps committees to understand their role and monitors the actions of committees by reviewing their accounts on a regular basis and undertaking investigations when concerns are reported.  Our Private Committee Handbook contains details of the roles and responsibilities of private committees once appointed and gives guidelines as to how to exercise these as committee. Reporting to the PGT is a statutory requirement for all Private Committees of Estate.

Canadian Elder Law Conference

The Canadian Elder Law Conference, entitled Bridging the Gap: Elder Law for Everyone, will be taking place from November 14-15, 2019 in Vancouver, BC. For more information on how to become a sponsor or how to register for the conference, visit the CCEL’s Canadian Elder Law Conference page.

The post British Columbia Public Guardian and Trustee: Gold Level Sponsor of the 2019 Canadian Elder Law Conference first appeared on British Columbia Law Institute.

Introduction

We are excited that Emily Clough will be presenting at the 2019 Canadian Elder Law Conference. Emily is a partner at Clark Wilson LLP, chair of the firm’s Elder Law group, and is on the CCEL’s Board of Directors.

In this blog post, we share an interview with Emily on her presentation, Elder Law Case Update. Emily brings her wealth of experience as an estates and trust lawyer who frequently works with clients with cognitive impairments to discuss with us recent elder law cases and tips for lawyers practicing in the elder law field.

What does elder law mean to you?

Emily: Elder law is a variety of different areas of legal practices that often overlap. They touch on anything to do with an older adult in our society. For example, it could be estate planning, incapacity planning, property law, family law, or financial matters. The unifying theme tends to be around the vulnerability that can come as we age.

What kind of legal issues are captured by the topic?

Emily: These legal issues can include estate planning, incapacity planning, rights to manage assets or personal care decisions. Legal issues also include rights about where to live: whether one is living at home and who makes these decisions, whether it’s yourself, someone else, or the government is going to step in.  Family law is increasingly coming into elder law issues as we are seeing more and more ‘grey divorce’.

What are some of the recent case law issues that you are going to discuss in your presentation?

Emily:

1. One of the things I will touch on is the varied housing or residence issues. There is an issue with whether people get to live at home when they may be at risk, and whether the government may intervene and remove somebody from a home and detain them.
2. I will talk a bit about estate planning and some of the risks that come when people do estate planning. There is a recent case out of BC (Gully v Gully, 2018 BCSC 1590) where a mother put her house into joint tenancy with her son. Her son later had some bankruptcy problems. The court found that the creditors could come after that mom’s house. She was just trying to think ahead and look toward to the future, but she ended up facing these risks and downsides of doing what she thought was un-risky estate planning.

At the last conference, you spoke on the topic of capacity to marry. What do you think lawyers, and the public, need to know about predatory marriages?

Emily: The capacity to marry requires one of the lowest forms of capacity. It is very easy to become married, which would put any adult who has some type of vulnerability or cognitive issues at a potential risk of being preyed upon.

Especially for the public, they should be aware of the importance of ‘eyes on’: when you see someone in your life who seems to be in a position of vulnerability, keep your eyes out for them. If you see something, ask a question. Sometimes this can feel uncomfortable for us because we don’t want to pry too much, but we do have adults who are at risk and it’s very easy for an adult to be preyed upon and too quickly become married.  As a society, we will do better by trying to look out for those who we see as vulnerable.

Creating a body of case law requires litigants. Can you identify any access to justice or practice barriers that are impacting the development of elder law jurisprudence in BC?

Emily: I think there is an access to justice issue for people who have cognitive impairments that are going to be progressive, where their capacity is only going to get worse as time goes by. Our justice system can tend to be slow. We have trouble obtaining quick hearing dates, and our court proceedings can be delayed. For adults who are facing progressive diseases where their capacity will decline over time, it is hard for them to access justice in a quick and timely way while they have capacity.

It is also hard for people to access a lawyer. It is complex to retain a lawyer and you need to have capacity to do that. It can be hard for people with capacity issues to find a lawyer to act for them. The lawyer may face difficulties because it may be hard to get a hold of the client, and it may be hard for the client to always have the ability to give instructions.

What are the top things lawyers should know about in order to help a client who may have a reduced capacity?

Emily:

1. The first thing to remember is the presumption of capacity. All adults are presumed to be capable, and as lawyers we should embrace this as our guiding principle. Even if someone is having some difficulties in capacity or fluctuation of capacity over time, they may still have the ability to instruct and retain counsel.
2. It is about patience. You may have to work at a different pace than you are used to doing.
3. A lawyer may have to communicate in a different and perhaps more deliberate way with people with diminishing capacity. Part of being respectful of an adult is to communicate in a way that they can receive and consider. You have to communicate effectively, to meet that adult where they are at. If they prefer to communicate in person, communicate in person. They may prefer to communicate in writing or in a different type of writing. Whatever it may be, you have to adapt to that person.

Canadian Elder Law Conference

The Canadian Elder Law Conference, entitled Bridging the Gap: Elder Law for Everyone will be taking place from November 14-15, 2019 in Vancouver, BC.

Emily’s presentation, Elder Law Case Update, will be at 11:05 am on the first day, Thursday, November 14, 2019.

Emily will also be moderating the Human Rights for People Living with Dementia Panel at 1:15 pm on the second day, Friday, November 15, 2019.

For more information, including how to register, visit the CCEL’s Canadian Elder Law Conference page.

The post Elder Law Case Update at the Canadian Elder Law Conference: Interview with Emily Clough first appeared on British Columbia Law Institute.

Earlier this year OBSI released its first ever Seniors Report, documenting the experiences of seniors using its services. The national, not-for-profit organization collected demographic and case data for 2017 and 2018 to create the report, which used the age of 60 as the threshold age of a senior.

Demographics

The report shows that 38% of complaints to OBSI came from people over the age of 60 and that complaints from seniors are more likely to be made by men than women, especially for married complainants. Over half of these senior complainants report having household incomes below $60,000, while one-third are still active in the workforce. Most senior complainants live in an urban (53%) or suburban (27%) community. A disproportionate number come from Ontario (52%) relative to its share of the Canadian senior population (38%), followed by British Columbia (13%), Alberta (12%) and Quebec (11%).

Banking services

Fraud is the most frequently reported banking issue for seniors. Credit cards are the bank product OBSI received the most complaints about from consumers over 60. Credit card chargebacks are the most complained about combination of bank product and issue. For seniors over 70, missing or lost funds also led as an issue for complaints. The report contains several case studies illustrating these issues.

Investments

The report showed that older Canadians are more likely than younger Canadians to file complaints relating to investment issues. Seniors’ investment-related complaints related predominantly to mutual funds and common shares, and their complaints mostly focus on the advice that they received when making these investments. The suitability of common shares and mutual funds, as well as fee disclosure, were the most complained about combination of investment products and issues.

Case Studies

Included in the report are several case studies illustrating the issues most complained about by seniors, including cases of seniors who have complained about investing in high risk investments with unexpected fees, have found themselves holding investments they can’t sell, have run into trouble with estate planning in times of crisis, have fallen victim to frauds, and have experienced problems with joint accounts and powers of attorney.

Observations

“OBSI has been helping Canadian consumers and financial services firms resolve their disputes for over 23 years,” said Sarah Bradley, Ombudsman and Chief Executive Officer, OBSI. “We are well positioned to observe the difficulties that senior consumers can face when they have a problem with the financial services they use.”

Some of the challenges faced by seniors that OBSI identified in its report include:

• Barriers to effective access to financial services – these include information barriers, emotional and social barriers, physical barriers, and economic barriers that affect seniors to a greater extent than younger Canadians.
• Communication challenges – seniors often report being overwhelmed by lengthy disclosure documents that contain too much information and require extended periods of attention and focus.
• Technology challenges – technology offers some innovative solutions for the challenges seniors face, but in general, they are less likely to take advantage of newer technologies. Even seniors who are comfortable with technologies, such as online banking, are nevertheless more vulnerable than younger clients because they may not be as aware of the security measures they need to protect their interests.

Policy and practical solutions

The report also highlighted a number of solutions financial services providers and regulators could consider to reduce the challenges faced by seniors, such as:

• Encouraging financial service providers to identify and use “trusted person” procedures
• Providing protection for providers of financial services who take action in what they reasonably believe to be the best interests of the consumer
• Ensuring that employees of financial services firms have the right incentives to provide appropriate services to seniors
• Using shorter, simpler documents that may also be taken away to share with trusted family members or advisors before making decisions
• Increasing the number of specific warnings to senior clients at key junctures or moments of risk
• Training for employees who deal with senior consumers and clients should encourage them to recognize vulnerabilities, perform basic assessments of capacity and adjust the delivery of information to the needs of the individual

The 2019 Seniors Report can be found on our website in both English and French.

____________

Canada’s Ombudsman for Banking Services and Investments (OBSI) is a national, independent and not-for-profit organization that helps resolve and reduce disputes between consumers and financial services firms in both official languages. OBSI is responsive to consumer inquiries, conducts fair and accessible investigations of unresolved disputes, and shares its knowledge and expertise with the stakeholders and the public. If a consumer has a complaint against an OBSI participating bank or investment firm that they are not able to resolve with the bank or firm, OBSI will investigate at no cost to the consumer. Where a complaint has merit, OBSI may recommend compensation up to a maximum of $350,000.

For more information, contact:
Mark Wright, Director, Communications and Stakeholder Relations
416-287-2877 ext.2225
mwright@obsi.ca

____________

2019 Elder Law Conference 

To learn more about OBSI, join us for the 2019 Canadian Elder Law Conference. Ombudsman and CEO, Sarah Bradley will be presenting at the conference, sharing how OBSI can help consumers, on Thursday, November 14.

This year’s conference, entitled Bridging the Gap: Elder Law for Everyone will be taking place from November 14-15, 2019 in Vancouver, BC. For more information, including how to register, visit the CCEL’s Canadian Elder Law Conference page. 

The post Difficulties Seniors Face with Financial Services first appeared on British Columbia Law Institute.

This post is part of a series highlighting key themes and presenters from the 2019 Elder Law Conference. To see the other posts in the series, click here

Historically the area of estates was not particularly litigious, but as families and financial circumstances become more complex, litigation involving estates has become more frequent. Frequently touted, but notoriously difficult to prove, is the allegation of someone being unduly influenced in making their Will.

A client of mine (let’s call him Derek) passed away leaving behind his (younger) common-law spouse (let’s call her Nancy). Derek had adult children from his first marriage. Derek and Nancy had lived together for a few years and she cared for him during a long period of declining health resulting in his ultimate death.  I had met Derek shortly after the death of his first wife and helped him prepare his first Will. He met Nancy and their relationship progressed, such that he adjusted his Will multiple times, each time increasing the support provisions for Nancy. On his death, Derek provided Nancy with a sizeable trust, from which she would receive a monthly stipend. His adult children each received specific bequests. The children fought to overturn the Will, primarily on the basis of undue influence.

Undue influence, in the context of wills, requires “testamentary undue influence, amounting to outright and overpowering coercion of the testator, which must be considered.” In Seguin v Pearson, 2018 ONCA 355 the Court of Appeal re-confirmed that in Ontario, the party attacking the will bears the onus of proving that the will was made due to undue influence.

Earlier court cases have outlined 6 circumstances that can be relevant to establish undue influence:

• increasing isolation of the testator;
• the testator’s dependence on the alleged influencer;
• substantial pre-death transfers of wealth from the testator to the alleged influencer;
• the testators expressed yet apparently unfounded concerns that they are running out of money;
• the testator’s failure to provide a reason or an explanation for leaving his entire estate to the alleged influencer and/or excluding family members who would expect to inherit; and
• documented statements that the testator was afraid of the alleged influencer.

The facts in Seguin were similar to Derek’s situation, and in Seguin the court found no evidence that the spouse had exerted undue influence over the testator in the making of his wills. Ultimately, the court noted that the will followed several months of deliberate reflection, meticulous legal advice and that the lawyers who had provided advice to the testator, had copious notes documenting his intentions prior to death. The court helpfully added that one of the factors that can be considered in rebutting the allegation of undue influence is whether the testator (the Will maker) got independent legal advice and the quality of that advice.

Preparing a comprehensive estate plan, including a Will and Powers of Attorney are extremely important. As I like to tell clients, experienced estate lawyers plan to minimize the risk of litigation with properly prepared and executed documents. Therefore, it is important to share with them the details of your unique situation. In Derek’s situation, I was aware of his relationship with Nancy, so we were able to take steps to minimize the risk that a claim of undue influence would be successful.

Canadian Elder Law Conference

To learn more about undue influence, join us for the 2019 Canadian Elder Law Conference. Deidre J. Herbert and Dr. Kenneth Shulman will be speaking on ‘Undue Influence—“Please”, “Unless” or Something Else’.

This year’s conference, entitled Bridging the Gap: Elder Law for Everyone will be taking place from November 14-15, 2019 in Vancouver, BC. For more information, including how to register, visit the CCEL’s Canadian Elder Law Conference page. Scotiawealth Management is a Gold level sponsor.

The post Ontario Law on Undue Influence in Estate Planning first appeared on British Columbia Law Institute.