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Category: Elder Abuse

Elder law: What it is and why it’s important

Elder law: What it is and why it’s important

Co-written by: Kim Gale and Lorissa Jaipaul

Elder law, broadly speaking, is the area of law focused on legal issues from the perspective of the older adult whose rights are in issue. When it comes to elder law itself, the legal issues that arise and the needs of the clientele are unique.

How to recognize elder abuse

 The first step in becoming aware of elder abuse is knowing how to identify it and what to do about it. Elder abuse may entail physical, emotional, verbal, financial, sexual and/or psychological abuse that is inflicted upon elderly individuals. It can also entail behaviours such as controlling, blaming and/or neglecting them. If you know of someone who is at risk of or currently experiencing elder abuse, it is imperative that they speak to a lawyer to know what their rights are. There are various organizations available to assist the elderly population with legal issues, such as the Advocates Centre for the Elderly (ACE).

Wearing purple to support world elder abuse awareness

June 15th, 2024 is World Elder Abuse Awareness Day (WEAAD) and the colour to recognize this day is purple. People will be wearing purple to commemorate WEAAD.

On June 20, 2024, back by popular demand, the Ontario Bar Association (OBA) will be hosting a day- long Elder Law Day professional development program at the OBA Conference Centre located at 20 Toronto St. in Toronto, from 9 a.m. to 4 p.m.

Panel discussions will include:

Collaborative law

The day will begin with a panel discussion on Dispute Resolution Options and How to Implement Collaborative Law into your Practice. ADR and collaborative law are relevant and growing areas of law, particularly within elder law. This panel will provide attendees with the opportunity to expand their skills and knowledge on ways to resolve elder law disputes and will explain how collaborative law can be used in this process.

Collaboration is a key part of all legal disputes, whether it be collaborating with your clients or with the opposing party or counsel, collaboration is essential to successful outcomes in the area of elder law. Accordingly, building off of our discussion on collaborative law, we will also be providing advice, tips and means for working with others in the field during our Working Effectively with Other Professionals offerings.

Collaborative law can assist in dispute resolution, whereby trained lawyers assist their clients in the resolution of their conflicts by way of co-operative strategies rather than adversarial techniques. The goal of collaborative law is to amicably resolve these disputes without needing to start legal proceedings in court. As it pertains to elder law, collaborative law is used to create proactive plans for future care and assistance, create care plans for elderly individuals who have become disabled and/or incapacitated, address and resolve disputes over elderly individuals’ right to live independently, guardianship and capacity, and much more.

Emerging trends

To help attendees stay up to date on all things elder law, we will also be having a panel that will be providing A Look at the Current Legal Landscape and Emerging Trends. Staying up to date with the current legal landscape and emerging legal trends is important in every area of law, but it is especially important in elder law due to the needs, vulnerabilities and sensitivities of the clientele.

Likewise, for lawyers and legal professionals working in this field whose work intertwines with elder law and/or who are just merely interested in expanding their knowledge, it is extremely important to stay up to date on the relevant case law. Our Elder Law Day event will also be hosting a panel in which important case law updates will be discussed and expanded on.

Keynote: Sidney Peters

We will also be having a keynote address from Sidney Peters, who is the Public Guardian and Trustee. Her keynote address will be a valuable opportunity for attendees to get insight into elder law and the work that the Office of the Public Guardian and Trustee does to assist and advocate for the elderly.

Award of Excellence

 The OBA annually presents an Award of Excellence in Elder Law. This award was created to recognize outstanding members of the OBA for their exceptional achievements, distinguished service and significant contributions in serving elderly Ontarians. This year, we will be dedicating this award to Judith A. Wahl, who was a fierce advocate for the rights of seniors. The OBA will be doing a tribute to Judith’s life and extensive contribution to this practice area.

Baby boom generation

 Finally, to wrap up all things elder law, we will also be having a panel on Serving the Baby Boomer Generation. This panel will help attendees learn some of the best strategies, approaches and means for working for and working with their aging client base.

If you are interested in elder law or looking to learn more about it, please join us on June 20 to learn about the most pressing issues impacting our aging population. Our expert faculty will get you up to speed on the latest developments in the area of elder law and share need-to-know insights to take your expertise to the next level.

 

This article was originally published by Law360 Canada part of LexisNexis Canada Inc.

The Legal Controversies of MAiD, Part One

The Legal Controversies of MAiD, Part One

 

Co-written by: Kim Gale and Jessica Campolucci

In a groundbreaking decision by the Court of King’s Bench of Alberta, the legal complexities surrounding Medical Assistance in Dying (MAiD) have been brought to the forefront in the case of W.V. v. M.V., 2024 ABKB 174, opined by Justice Colin C.J. Feasby.

This case involves a 27-year-old woman, M.V. (M), diagnosed with autism and associated behavioural disorders, and her father, W.V. (W), who initiated legal action to prevent her from receiving MAiD.

Background of the case

M, while not suffering from any intellectual development or speech disorders, requires support due to her Level 1 Social Communication Disorder and substantial support for her Level 2 Restricted-Repetitive Behavioural Disorder. Interestingly, M has no physical ailments and has not been seeking treatment for any adverse psychological or physiological conditions. Her recent interactions with medical professionals were solely in pursuit of MAiD, leading to a significant legal battle initiated by her father.

W brought forth an injunction to stop M from receiving MAiD, which was initially granted by Justice R. Paul Belzil on an ex-parte basis. M subsequently applied to have this interim injunction set aside, a motion heard in the Court of King’s Bench, which is the superior trial court for the province, hearing trials in civil and criminal matters and appeals from decisions of the Court of Justice.

Historical context of MAiD in Canada

The evolution of MAiD in Canada is marked by significant legal milestones and societal debates that have shaped the current framework of assisted dying. Here’s a more detailed look at the historical progression:

Rodriguez v. British Columbia (Attorney General) [1993] 3 SCR 519

In this pivotal case, Sue Rodriguez, who had amyotrophic lateral sclerosis (ALS), challenged the constitutionality of s. 241 of the Criminal Code, which criminalized aiding and abetting suicide. She argued that the prohibition infringed on her rights under ss. 7 (right to life, liberty and security of the person), 12 (freedom from cruel and unusual punishment) and 15 (equality rights) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada upheld the constitutionality of the law, finding that the prohibition on assisted suicide was consistent with the principles of fundamental justice, despite acknowledging the impairment of Rodriguez’s rights.

Carter v. Canada (Attorney General), 2015 SCC 5

This landmark decision by the Supreme Court of Canada overturned the previous ruling in Rodriguez. The court found that the prohibition on assisted dying was unconstitutional as it applied to competent adults suffering from grievous and irremediable medical conditions that cause enduring suffering that is intolerable to the individual. The court ruled that the law unjustifiably infringed on the rights under s. 7 of the Charter and was not saved by s. 1, which allows rights to be limited if it is justified in a free and democratic society.

Legislative response and amendments

In response to the Carter decision, the Canadian government amended the Criminal Code in 2016 to allow eligible adults to request medical assistance in dying. These amendments specified the criteria under which individuals could seek MAiD, focusing on those with grievous and irremediable medical conditions whose death was reasonably foreseeable.

Truchon c. Procureur général du Canada, 2019 QCCS 3792

In a significant development in the legal landscape of MAiD, the 2019 Quebec Superior Court case, Truchon c. Procureur Général du Canada, 2019 QCCS 3792, addressed the limitations imposed by the MAiD legislation, which previously required that a person’s death be “reasonably foreseeable.” This requirement was challenged as it did not accommodate individuals with grievous and irremediable medical conditions who were not nearing death.

Justice Christine Beaudoin ruled that limiting MAiD to those facing imminent death was discriminatory. She emphasized that the protection of vulnerable individuals should be managed by medical professionals, not by arbitrary legislative barriers that unfairly exclude certain groups.

Revisiting Criminal Code sections pertinent to MAiD

Section 241(1)

  • s.241(1)(b): Assisting or encouraging suicide remains a criminal offence punishable by up to 14 years in prison.
  • s.241(2): This subsection provides an exemption for medical practitioners and nurse practitioners who administer medical assistance in dying in accordance with the safeguards outlined in Section 241.2.

Section 241.2(1): eligibility criteria for MAiD

The Criminal Code specifies the following criteria to be eligible for MAiD:

  • The individual must be eligible for health services funded by a Canadian
  • The individual must be at least 18 years old and capable of making health-related
  • The individual must have a grievous and irremediable medical
  • The individual must have made a voluntary request for MAiD, free from external
  • The individual must give informed consent to receive MAiD after being informed of other means available to relieve suffering, including palliative care.

Section 241.2(2): definition of grievous and irremediable medical condition

 A grievous and irremediable medical condition is defined as meeting all the following criteria:

  • The individual has a serious and incurable illness, disease or
  • The individual is in an advanced state of irreversible decline in
  • The illness, disease or disability or state of decline causes enduring physical or psychological suffering that is intolerable to the individual and cannot be alleviated under conditions they consider acceptable.

Safeguards under MAiD (two tracks system) Track 1: Natural death is reasonably foreseeable. Track 2: Natural death is not reasonably foreseeable.

Track 2 requires: Two independent medical opinions confirming the person meets the eligibility criteria, is given assurance that they can withdraw their request at any time and is provided full information about available means to relieve suffering.

Independence criteria (s.241.2(6)(c))

A medical or nurse practitioner is considered independent if they:

  • Are not a mentor or responsible for supervising the work of the other practitioner
  • Do not stand to benefit financially or materially from the person’s death, other than receiving standard compensation for their services related to the MAiD process.
  • Have no other connections to the other practitioner or to the person requesting MAiD that could affect their objectivity.

This is the first of a two-part series.

 

This article was originally published by Law360 Canada part of LexisNexisCanada Inc.

Elder Law: Representation for those who are Incapable

Co-written by: Kim Gale and Jonathan Nimpar

Elder Law: Representation for those who are Incapable

This article is written to discuss a topic that will be highlighted at Elder Law Day on March 28, 2023, in person at the Ontario Bar Association between 2-5 p.m. (To learn more about Elder Law Day, click here.)

In matters under the Substitute Decisions Act (SDA), there are three distinct roles usually involved in protecting the legal rights of persons mentally incapable of making financial and personal care decisions for themselves. These roles are section 3 counsel, litigation guardian and the public guardian and trustee (the PGT). These are three distinct but important roles that exist for the protection of the interests of mentally incapable persons.

Litigation Guardian

 When a party is mentally incapable of instructing counsel, is a minor or is an absentee, Rule 7 of the Rules of Civil Procedure provides that an action can be commenced or defended on behalf of a person with a disability by a litigation guardian. A person already acting as a guardian to a mentally incapable person or an attorney under a power of attorney can be designated as the litigation guardian. If there is no previous guardian or attorney, then anyone can be appointed to be the litigation guardian. The litigation guardian must have a lawyer represent them in proceedings, and they must provide the necessary instructions to the lawyer. The litigation guardian must be mindful of the Rules of Civil Procedure, particularly the substance of their affidavit per Rule 7.02(2). They must have been informed of their potential liability for costs (per r. 7.02(2) (b) and (h).

Section 3 Counsel

On the other hand, s. 3 of the SDA allows a court to direct the PGT to arrange for a counsel to represent individuals alleged to be mentally  incapable in guardianship and power of attorney litigation in Ontario. The section 3 counsel represents, advises and acts on the instructions of the client. A section 3 counsel has the same relationship with his client as any solicitor-client relationship a lawyer ordinarily has. Check out our article on the functions and responsibilities of a section 3 counsel.

Public Guardian and Trustee

 Finally, the PGT is the province's means of ensuring the protection of persons under disability such as minors and those without mental capacity. The PGT is, among many other duties, responsible for making financial decisions for adults who have been found mentally incapable and provides other services to protect the financial, legal and personal care of mentally incapable people of Ontario. The PGT can appoint section 3 counsel in respect of proceedings under the SDA, upon a court order and can be appointed as a litigation guardian for a mentally incapable person.

It is important to point out that while these representatives can be present at the same time, they are exercising different responsibilities on behalf of an incapable person.

Section 3 vs. litigation guardian

 Section 3 counsel cannot make assumptions or act independently of the instructions of the client. Therefore, if a client is unable to give instructions, the section 3 counsel cannot determine the client's wishes and cannot make decisions for the client. The PGT monitors the conduct of matters to protect the mentally incapable person but does not direct or instruct the section 3 counsel.

A section 3 counsel is appointed by the PGT pursuant to an order or directions from the court while the litigation guardian is appointed by the court upon an application when it is necessary.

Additionally, the PGT can act as a litigation guardian as a last resort for mentally incapable adults but cannot be made the section 3 counsel.

A litigation guardian becomes the decision maker of the mentally incapable person in terms of the litigation and has no limitations on how to proceed. This means that anything a party is required to do or authorized to do can be done by the litigation guardian who is diligently carrying out these responsibilities in the best interests of the mentally incapable person.

Conclusion

Ultimately, all three representatives act in different roles and capacity, but they all are expected to act in the best interest of an incapable person. These roles function to protect the interests of vulnerable people, and it is important to emphasize the need for persons who will work constructively to assist the mentally incapable persons as the appropriate persons to fulfil these roles.

 

This article was originally published by Law360 Canada part of LexisNexis Canada Inc.

Lawyers Care about Long-Term Care

Lawyers Care about Long-Term Care

There has never been a time where a light has shone so brightly on long-term care homes (LTC), and it is not a pretty picture. The COVID-19 pandemic has exposed the system’s struggle to meet the most essential needs of residents. At a time where the situation is going from desperate to dire, the Ontario Bar Association’s Elder Law Section has established a COVID-19 Working Group (Working Group) to closely examine the important legal issues facing vulnerable older Ontarians through the pandemic.

As one of the newest additions to the OBA, the Elder Law section was established in 2017 with a goal of furthering the interests of older adults and the legal practitioners who serve them. With a particular focus on the situation in LTC, the objectives of the Working Group include advocating for improvements to laws and regulations impacting LTC to better protect their vulnerable populations. It is time to better this system.

It is widely recognized that there are issues with regulation, supervision and accountability which directly impact the well-being of residents in LTC. These issues, while not new, have been thrust into the spotlight by the pandemic. Lawyers practising in the emerging field of elder law have a critical role to play by sharing the frontline experience of the bar and assisting government in identifying practical and useful legislative and regulatory reform to respond to the impacts of the pandemic on the older population, particularly those in LTC.

In July, the Elder Law section delivered a letter to the minister of long-term care and minister of seniors and accessibility, advocating for immediate implementation of the following recommendations:

  1. Ensuring compliance with the Residents’ Bill of Rights;
  2. Resuming unannounced annual Resident Quality Inspectors in all LTCs;
  3. Safeguarding residents’ right to give informed consent or refusal to treatment and the delivery of personal assistance services;
  4. Accelerating the completion of the LTC rebuild program; and
  5. Ensuring sufficient life safety measures are installed in LTCs.

We are looking forward to hosting a panel discussion on Dec. 9, 2020, on Safety in Long-Term Care: Making Sense of the Gillese Report and Government Response, and welcoming Ontario Justice Eileen Gillese herself as one of our presenters. Our work on a submission to the Long-Term Care COVID-19 Commission (the commission) also continues.

The issues plaguing LTC are wide-ranging and include:

  • There is evidence of overcrowding, understaffing, shortage of personal protective equipment (PPEs), outdated facilities, poor regulation and lack of job security and funding provided by the provincial and federal government in LTC.
  • The challenge with the upsurge of COVID-19 cases is that Canada and the Ministry of Long-Term Care for Ontario do not have consistent standards or policies in place for nursing homes.
  • While health-care providers have an obligation to care for their patients, they are unable to do so due to untimely interventions, minimal guidance and poor procedures.

The commission’s first interim recommendations, released on Oct. 23, 2020, are aimed primarily at increasing staffing, strengthening health-care sector relationship and collaboration and improving infection prevention and control measures.

As the second wave of COVID-19 continues to surge in Ontario, we must pull together to do the work that needs to be done to protect our vulnerable senior population. This is an issue that impacts many Ontarians today, and it will affect many more people in the future. The OBA’s Elder Law COVID-19 Working Group will continue to advocate for the legal changes necessary to achieve this goal. For more information, visit oba.org/sections/elder-law.