Was Oz Munchkin Victim of Power of Attorney Abuse?

Financial abuse of the elderly is, unfortunately, an increasing problem.  The aging population and increasing rates of dementia are factors that are leaving seniors exposed to exploitation by friends or family members.  Currently, approximately 500,000 Canadians suffer from dementia and that number is expected to more than double over the next generation.  

As I have blogged about previously, having a power of attorney for property in place appointing a substitute decision maker to act when the grantor of the power of attorney no longer has the capacity to make decisions is a good idea.  However, unfortunately it is not uncommon for the person named as attorney to use his position to take advantage of a vulnerable senior and to misuse his authority. 

While examples of power of attorney abuse include the extremes, such as outright theft or changing title to assets, it can also be more subtle – such as an attorney who is also the main beneficiary of an estate not making appropriate expenditures for the incapable person’s benefit so as to protect his own inheritance. 

The recent saga involving the estate of Mickey Carroll, best known for playing a Munchkin in the Wizard of Oz is a good example of the dangers of power of attorney abuse.  Apparently, after Carroll’s death in 2009 his relatives became concerned that there was money missing from his estate. 

They hired a private investigator to look into the situation and the investigator’s findings have resulted in the relatives suing Carroll’s former caretaker and three of her friends for more than $500,000.  In their lawsuit, the relatives allege that during a time when Carroll was suffering from dementia, the caretaker and her friends convinced him to grant a power of attorney in their favour. 

The suit further alleges that after obtaining the power of attorney, the caretaker and her friends convinced Carroll to take out a sizeable line of credit against his home and not long after that he started signing cheques made out to “cash” for tens of thousands of dollars – something that was inconsistent with his prior spending habits. 

The relatives are seeking the return of the missing funds.  In an interview she gave not long after Carroll’s death, the caretaker characterized the allegations of the missing funds as being “foolish”. 

Are Nursing Home Patients Getting Adequate Care?

A recent article in the Globe and Mail raised the question of whether patients in nursing homes and long term care [“LTC”] facilities are getting adequate medical care from attending physicians.  The impetus for the article was a question from a reader asking what she should do about concerns she had about the LTC facility where her mother resided.  Apparently, the doctor who visited the facility every week appeared to be spending more time sitting in the nurses station reading nurses’ notes rather than making rounds and seeing patients. 

The article suggests that the doctor wasn’t necessarily doing anything wrong – but appeared to be doing the bare minimum his job required.  Apparently, part of the problem stems from the fact that doctors in Ontario are remunerated on a “fee for service” basis – meaning the doctor got paid as much for reading a patient’s chart as he did for examining the patient and, apparently, wasn’t motivated to do much else.

In the article, Dr. Paddy Quail, the president of the Long-Term Care Medical Directors Association of Canada, expressed concern that while, technically, the doctor may have been doing all that was required of him the situation still didn’t “seem right.”  He pointed out that LTC patients were mainly women, 85 and over, who suffered from dementia, and who would reside in the facility for an average of 18 – 24 months before dying.  As a result, comfort and ease of suffering were major goals of care for these patients.  

In Dr. Quail’s view, appropriate engagement with the patients should include helping to ensure comfort, employing strategies to prevent falls and other injuries, treating infections, and making sure medications are correct.  In addition, building a rapport and engaging in social interactions with patients is also important. 

As Dr. Quail points out, one of the reasons that families can be reluctant to speak up if they have concerns about the care or treatment being provided is a fear of retribution toward the patient.  Nevertheless, he views concerns such as the one raised in the article as being significant and encourages family members to raise them with the director of care for the facility in question.  

Bullies in the Nursing Home

Most of us will remember some form of bullying from the high school cafeteria – but do you expect to encounter it in the dining room of a nursing home? 

According to a recent article in the New York Times, when it comes to social interactions in assisted living facilities, “older” doesn’t necessarily mean “more mature” and social bullying is a phenomenon that can extend into old age.  As Marsha Frankel, the clinical director of senior services at Jewish Family and Children’s Service in Boston puts it, “What happens to mean girls?  Some of them go on to become mean old ladies.”

Some examples of the “senior bullying” described in the article include:

  • Attempting to monopolize communal space (such as by insisting on choosing the t.v. channel and trying to control who sits where);
  • Excluding others from social situations (such as by claiming a seat is being saved when it’s not, so as to avoid sitting with someone else); and
  • Being generally nasty (such as by insulting others or by being intolerant of cultural or religious differences). 

While cognitive impairment, such as from dementia, can be an underlying cause of bullying, it is not always the reason.  More frequently, it is because the older people are at a point in life where they feel powerless (not unlike adolescence) and bullying can provide a sense of control and acquiring power. 

In some cases, the victims of the bullying are able to shrug it off – but in other cases it can have a very detrimental effect on their well being.  Seniors are often in very vulnerable stages of their lives and living in a care facility while being the object of bullying can contribute to feelings of anxiety and depression as well as encourage withdrawal from social situations.  

Dealing with the problem of bullying is complicated.  According to the article, “caring community” workshops make little difference.  However, apparently encouraging staff to intervene as when bullying occurs and teaching seniors to be more proactive in standing up for themselves has been helpful.

Would You Like to Know How Much Longer You Will Live?

If you had the opportunity to find out how much longer you were predicted to live would you want to know?  You may have the chance shortly. 

According to the New York Times, researchers at the University of California, San Francisco, have developed a geriatric calculator designed to predict the odds of how much longer an individual will live.  To make the predictions, the website will use 18-20 different geriatric prognostic indexes. 

The objective of the website is to provide evaluative information that can be used for health care purposes, such as for nursing home residents. It is hoped that the information gained from the calculations will assist doctors and patients in making health care decisions. 

Life expectancy will often affect medical decisions.  For example, an individual’s age and frailty will have an impact on the type and extent of tests and procedures that will be useful in treating various ailments.     

While the website tries to limit use to health care professionals it appears that entry is based on the honour system – the New York Times did not provide the address to the site on the basis it was still in a testing phase; however, it did report that users were simply asked to confirm they were a health care professional to gain access. 

This leaves open the possibility that casual users, relying on do-it-yourself indexing, will become dismayed that they’re not predicted to have that much longer on the earth (or develop a false sense of security that they have longer than they thought).

It appears that given the opportunity most people would like to know how much longer they’re predicted to live.  The New York Times monitored the responses to its article on geriatric calculators and notes that readers were unanimous in their desire to have access to the information.   

Delivering Alzheimer's Treatment to First Nations

The Vancouver Sun recently published an interesting article about the delivery of health care services to those suffering from dementia in First Nations communities.

The statistics relating to the prevalence of dementia and Alzheimer’s in First Nations are limited.  However, data that is available suggests that the rates amongst Aboriginals have surpassed non-Aboriginals – at least in the Western provinces.    

In First Nations communities, Alzheimer’s is seen not as a disease, but rather a natural and sacred part of the aging process.  The stigma associated with the disease in mainstream society is not as prevalent in First Nations communities.

While this allows First Nations communities to develop culturally appropriate ways to diagnose and treat Alzheimer’s, it also makes educating people about the medical aspects of the disease more difficult.  Treatment and medication are not always prioritized.   

To this end, the Oneida Nation of the Thames, in collaboration with the Alzheimer’s Society London and Middlesex, has developed the First Nations First Link program.  First Link involves a holistic approach to dementia and integrates cultural, spiritual, and traditional elements when administering care.  The program focuses on crisis intervention, individual and family support, and long term care preparations.

A major goal is to tailor the services of the programs so they are delivered in a culturally appropriate way.  For example, on cognitive impairment screening tests, individuals are asked to identify objects which are representative of the Oneida community, such as a wolf and a medicine wheel.

Ultimately, the objective is to diffuse information about dementia throughout the community and develop screening tools and treatments that can be delivered in a culturally appropriate way.   

Canada Joins the Alzheimer's Café Scene

Antigonish, Nova Scotia has hosted the opening of the first Alzheimer’s Café in Canada.

The purpose of an “Alzheimer’s Café” is to unite those suffering from Alzheimer’s disease, their caregivers, and the general public in an informal setting that resembles a café (complete with food, drink, and entertainment) rather than an institutional setting.  The objective is to move away from a traditional “support group” model and towards interactions that are more social in nature. 

The reason behind Alzheimer’s cafés is a good one.  A big issue that arises with those suffering from dementia is that they become housebound and secluded from the social world.  This can occur for a variety of reasons – they might have difficulty with mobility, they may be embarrassed about their condition, or they might be fearful of leaving the house. 

Over time, the isolation can start to spiral (as an individual becomes more isolated he becomes less and less likely to voluntarily leave his home) – and it can accelerate mental decline.

Openly discussing dementia can be difficult because of the social stigma that surrounds the disease.  An objective of Alzheimer cafés is to allow people to openly discuss their experiences with dementia (whether as someone who suffers from the disease or as someone who instead is a relative or caregiver of someone who is a sufferer).    

The idea for Alzheimer cafés originated from Dr. Bere Miesen, a Dutch psychiatrist, in 1997; they have since become ubiquitous in the Netherlands.  The concept has also become popular elsewhere in Europe – the first café of this type opened in the United Kingdom more than ten years ago and it has apparently also gained ground in the United States.    

The idea has been spearheaded in Canada by Danielle Martensson, a nursing student at St. Francis Xavier University.  The group has had two events in Antigonish since January and plans its official opening next month.   

When the Family Fight Starts, Bring In the Elder Mediator!

For those involved in a dispute and who wish to avoid the cost, time, and unpredictable nature of litigation, mediation can be a good way of resolving things.  This is particularly the case when the parties are relatives and there’s a desire to salvage (or at least minimize the damage on) family relationships. 

The Wall Street Journal recently published an article discussing the increase in the number of mediators specializing in disputes that involve the elderly.  This is a phenomenon I mentioned in a previous blog on dementia and the Globe and Mail discussed elder mediation during its September series on aging.   

Elder mediators can help families resolve a wide range of conflicts – ranging from whether an aging parent should move to a nursing home to whether a vacation home will need to be sold to fund a parent’s care.  Sometimes mediation is entered into voluntarily, while other times it will be required by the court. 

Here are some things to consider when planning a mediation of this type:

  • What type of mediator will be best?  The mediator should have a background in elder mediation but, beyond that, would the issues in dispute be better mediated by someone with a legal background or would someone with a background in, say, social work be better?
  • How will the elderly person’s interests be represented? If she isn’t attending the mediation then someone (such as a professional advisor or trusted friend) should attend on her behalf.
  • Who will pay for the mediator?  Mediation can be expensive and apportionment of costs should be agreed upon beforehand, preferably in writing.   
  • Who will attend the mediation?  Are the issues such that lawyers or other types of professional advisors should be in attendance?
  • What will happen if a settlement is reached?  When litigation has been commenced then creating a binding settlement can be fairly easy.  However, when the mediation is more informal, consideration should be given to how the settlement will be enforced. 

As a final note, it’s desirable to make sure that the objectives of the mediation and the issues to be discussed are clear to all well prior to the mediation!

How to Have the "Nursing Home Talk" with a Parent

The aging population has left more and more people with the prospect of having a very difficult conversation: telling an aging parent it’s time to consider moving to a nursing home. 

In the easiest circumstances, the parent acknowledges that the time has come to make the move.  However, this is frequently not the case – for an individual who has lived independently for most of her life (sometimes residing for decades in a home which now carries heavy emotional value), the decision to move to a care facility can be an extremely difficult one.   

The Globe and Mail recently ran an excellent article written by Dr. Joti Samra, a Vancouver-based psychologist, that offered tips on how to broach the topic of a nursing home with an aging parent.  The suggestions include:

  • Plan in advance – think about what you want to say, what the options are, and what timelines might be involved;
  • Give the parent advanced warning about the discussion so she doesn’t feel taken off guard or attacked;
  • Consider whether anyone else should be involved in the discussion – there may be value in involving another relative so the parent feels supported and understands her best interests are at heart.  However, avoid ganging up on the parent;
  • Listen to the parent’s concerns and show empathy.  Acknowledge that this is a very difficult topic for her to consider and appreciate that she may be defensive or sad.  Ask what’s important to her and consider how those issues can be incorporated into a solution about appropriate living arrangements; and
  • Keep in mind that repeat conversations might be necessary – a workable solution might not be achieved after the first conversation so don’t get frustrated or give up hope.

Moving to a nursing home isn’t easy for anyone, but there are times when there might be no other choice – opening the lines of communication early will allow everyone more time to mentally prepare for the change.

Doctor's Photo Essays Highlight Plight of Vulnerable Seniors

Last weekend, I had the opportunity to see “House Calls with my Camera”, a series of photo essays currently displayed at the Royal Ontario Museum showcasing the challenges faced by home-ridden seniors citizens.   

The exhibit is the work of Dr. Mark Nowaczynski, a Toronto-based doctor and the clinical director of House Calls, an interdisciplinary team (which includes a doctor, a social worker, a nurse practitioner, and an occupational therapist) that provides home-based care for vulnerable seniors. 

Dr. Nowaczynski started practicing in 1992 and immediately saw the importance of making house calls to patients who would otherwise not receive medical care.  In 1998, he began documenting through photography the struggles his patients encountered as a result of having been overlooked by the medical profession.  In 2007 he started House Calls to improve the quality of care that can be obtained at home and it received full government funding in 2009. 

The exhibit focuses on four at-risk seniors and showcases their personal stories, quality of life, and the struggles they have faced without the appropriate medical and supportive services.  They also show the work the House Calls team does and the changes the professionals involved have been able to make in the lives of the patients – although it’s clear that even with support struggles still remain. 

For those who are interested in seeing the exhibit, this is the last weekend to do so – it closes on January 16, 2011.

When Can Powers of Attorney Be Invalid?

In his recent decision in Baranek Estate, Justice Brown observed that “the so-called ‘battle of competing powers of attorney’ is emerging as a growing area of litigation.  This is a most unhealthy development.”  The facts behind Justice Price’s recent decision in Nguyen-Crawford v. Nguyen would seem to give credence to Brown J.’s complaint.

Nguyen-Crawford v. Nguyen involved a fight amongst the five children of an elderly woman who was impaired by a stroke.  In 1998, powers of attorney for property and for personal care had been executed by the woman in favour of her youngest daughter.  In 2009 (after she had suffered a stroke) the mother granted powers of attorney for property and personal care to her other four children. 

The youngest daughter then commenced an application seeking a declaration that the 2009 powers of attorney were invalid on the basis that her mother was incapable. After conceding the invalidity of the 2009 powers of attorney, the four other children challenged the validity of the 1998 powers of attorney on the basis of incapacity and undue influence. Specifically, they argued that the only translation their mother (who did not speak English) received of the powers of attorney was from the daughter being named. They also asked to be appointed as the mother’s guardians of property and personal care.

Pursuant to s. 8 of the Substitute Decisions Act, 1992 (“SDA”) an individual is capable of granting a continuing power of attorney for property if she understands, amongst other things, the nature and extent of her assets as well as the obligations of an attorney for property.  Pursuant to s. 47 of the SDA, an individual is capable of granting a power of attorney for personal care if she is able to understand whether the proposed attorney has a genuine concern for the person’s welfare and appreciates that the attorney might need to make decisions for the person. 

Here, Price J. found that although the mother was not under disability in 1998 and had the capacity to sign powers of attorney there were suspicious circumstances surrounding the execution of the documents.  The mother was dependant on the daughter being appointed and the daughter had provided the only translation of the powers of attorney and the legal advice given concerning them.  As a result, he found that the circumstances of undue influence were such as to render the powers of attorney invalid. Ultimately, he appointed the four other children as the mother’s guardians of property and personal care.   

Heavy Smoking May Increase Risk of Dementia

For the smokers out there, here’s yet another reason to add “quitting” to the top of your list of New Year’s resolutions: a recent study has found that heavy smoking increases an individual’s risk of dementia. I stumbled across this when reading the Brain & Spine Injury Blog, published by Nevada-based lawyer, Timothy Titolo. 

According to the Archives of Internal Medicine, heavy smoking (which was defined as smoking more than two packs a day) in mid-life was associated with an over 100% increase in the risk of developing dementia, Alzheimer’s disease, and vascular dementia.  Associations between dementia and smoking did not vary by sex or race. 

The study analyzed data from a multi-ethnic cohort of 21,123 people who participated in the study between 1978 and 1985.  Of those people, 25.4% were diagnosed as having dementia more than two decades later.  The increased risk amongst smokers was seen in every subgroup of dementia.  Those who smoked less than half a pack a day and former smokers did not appear to have seen an increased risk. 

It was not completely clear why smoking caused an increased risk of dementia.  However, the study suggests that smoking contributes to the risk through similar mechanisms as it does for stroke, through vascular and through neurogenerative pathways. 

Whatever the reasons, this study is a good reason to leave the pack behind!

When Can a Capacity Assessment be Ordered by the Court?

The Superior Court of Justice’s recent decision in Urbisci v. Urbisci discusses the circumstances under which the court should require an individual to undergo a capacity assessment against his or her will. 

By way of background, the applicants were the daughter and estranged husband of the alleged incapable person (“Maria”).  They sought a court order requiring Maria, who had an incurable brain tumor, to submit to a capacity assessment.  Maria opposed the order.    

Section 2 of the Substitute Decisions Act, 1992 (the “SDA”) provides that absent reasonable grounds to believe to the contrary, an individual is presumed to be capable.  However, pursuant to s. 79(1), if an individual’s capacity is in issue in a proceeding under the SDA and the court is satisfied that there are reasonable grounds to believe a person is incapable, it can order a capacity assessment. 

The court has long rejected the idea that it was harmless to require an individual to undergo a capacity assessment.  The decisions of Strathy J. in Abrams v. Abrams and Pattillo J. in the unreported decision of Flynn v. Flynn, both discuss the intrusive and demeaning nature of the process.   

Brown J., the judge hearing the application, proceeded to set out some of the factors the courts have turned their minds to when determining whether there were reasonable grounds to believe that a person was incapable, including:

  • The wishes of the person sought to be examined;
  • The nature and quality of both medical and non-medical evidence regarding the person’s capacity;
  • Where there has been a previous assessment, the assessor’s qualifications, the comprehensiveness of the report, the report’s reliability, whether there is evidence of bias, and whether the evidence considered was appropriate;
  • The probative value of the assessment vis-à-vis the issue before the court;
  • The potential harm that might result if the assessment does not take place; and
  • The urgency of the capacity assessment.

Ultimately, Brown J. decided not to order the capacity assessment.  He found that although Maria’s health was declining, the evidence suggested that she still had the capacity to manage her own affairs. Particularly persuasive were medical records and opinions filed by Maria’s various doctors suggesting capacity; evidence of her capacity provided by her estate planning lawyer; and supportive evidence provided by disinterested family and friends.

Establishing a Litigant's Capacity on Motions for Court Approval of a Settlement

Sometimes, legal proceedings must be commenced or defended by a litigation guardian on behalf of someone who is mentally incapable.  Recent endorsements in Carano v. Manduck underscore the importance of establishing that a litigant remains incapable when asking the court to approve a settlement on the litigant’s behalf.   

In Carano v. Manduck, a plaintiff had been severely injured in an automobile accident and the Public Guardian and Trustee had been appointed as his litigation guardian. The litigation settled and the parties sought court approval of the settlement.  The affidavit filed in support of the motion made reference to the fact that the plaintiff had been tested and found capable of managing property.

Given the evidence of capacity, Wilkins J., the motions judge, found that it had to be established that the plaintiff approved of the settlement (and apparently there was evidence that he did not approve). 

Supplementary materials were filed and the motion subsequently came before Brown J. in August 2010.  There was evidence that in June 2008  a doctor had provided an opinion that the plaintiff was unable to make decisions about the settlement, while in December 2008 and April 2009 there were opinions that the plaintiff did have capacity.

Brown J. found that the opinion evidence had become stale-dated and declined to make any findings regarding capacity.  He found that if the litigant was capable, the court lacked jurisdiction to make determinations about his financial affairs.   Brown J. also emphasized the necessity of including evidence of a party’s current level of capacity on any motion for court approval of a settlement on an incapable party’s behalf.    

Brown J. acknowledged that there would certainly be circumstances where a litigant’s incapacity would remain static throughout a proceeding (such as when the party had been catastrophically injured).  However, he also noted that injuries can resolve themselves and capacity can improve over time.    

Counsel proceeded to file further submissions on the issue of the plaintiff’s capacity.  After having considered the additional evidence (which included an August 2010 assessment), Brown J. found that the plaintiff was incapable of making property decisions and, after reviewing the terms of the settlement, approved it on the plaintiff’s behalf.   

The endorsements in Carano v. Manduck stand as an important reminder that once incapable doesn't mean always incapable.  When a court is being asked to approve a settlement on an incapable litigant's behalf, it is absolutely essential that evidence is provided to satisfy the court the litigant remains incapable and the court has jurisdiction to approve the settlement.

Consent and Capacity Board Appeals - Naming and Paying an Amicus

The Consent and Capacity Board (“CCB”) is an independent provincial tribunal in Ontario.  A large part of its mandate involves reviewing a person’s involuntary admission to a psychiatric facility pursuant to the Mental Health Act or a person’s capacity to refuse medical treatment pursuant to the Health Care Consent Act

An individual has the right to appeal the decision of the CCB to the Superior Court of Justice.  Appeals of CCB decisions in Toronto are currently subject to pre-hearing case management, during which the court has the discretion to appoint an amicus (the role of which is to help the court understand the legal and factual issues raised by the patient).

Brown J.’s recent decision in Cavalier v. Ramshaw addresses the issue of payment of amicus appointed by the court. 

Initially, an amicus was either nominated by the parties (subject to court approval) or, at the court’s request, the Ministry of the Attorney General (“MAG”), in conjunction with Legal Aid Ontario (“LAO”), would forward names of counsel from LAO’s Consent and Capacity panel to the court for approval. 

Counsel was to be paid according to LAO’s “standard administrative terms”. However, this proved problematic, because LAO caps hours spent by counsel on CCB appeals at 16, when, in reality the time involved is significantly more (generally between 30 – 50 hours for an average appeal).  

MAG’s position in Cavalier v. Ramshaw was that the amicus should be subject to the LAO cap, unless LAO exercises its discretion to allow more time spent.  Brown J dismissed this argument on the basis that if the court imposed an unrealistic cap on the time spent, many very qualified lawyers would not offer their services. 

Brown J. determined it was preferable for the court to select the panel of counsel from whom amicus could be appointed, fix the hourly rate that could be charged, and monitor the hours that were being billed to ensure they were reasonable.  Providing the accounts were, they would be forwarded to MAG for payment. 

Acknowledging the issue of whether the court had the authority to order MAG to pay the legal fees of amicus, he requested that MAG advise the court by mid-November as to whether it was prepared to fund the fees.  In the event that it was unwilling to do so, Brown J determined that there was no point continuing to case-manage CCB appeals and that the old system would return. 

This is a scary thought because under the “old system” appeals languished, typically because the patient did not have the expertise or the capacity to complete necessary court materials.  Until an appeal has been heard, treatment usually cannot be given and a patient who is not improving will frequently remain detained. 

It will be very interesting to see what MAG decides to do.   

Avoid the Mistake of Not Planning for Mental Incapacity

In my practice, a common mistake I see people making is failing to plan adequately (or plan at all!) for incapacity.  

Apparently I’m not alone in this observation - the Globe and Mail recently ran an excerpt from the new book, “The 50 Biggest Estate Planning Mistakes…and How to Avoid Them” and mistake # 1 was failing to designate a substitute decision maker for property and personal care when an individual still had the capacity to do so.     

My married clients are often surprised to learn that if they become incapable their spouse does not automatically have the right to make decisions on their behalf.  Instead, the spouse (or whomever the individual wants to designate) must be named in powers of attorney for property and for personal care.   

A continuing power of attorney for property gives the person (or persons) appointed the right to do anything with respect to the grantor’s property that the grantor could do if capable except make a will.  The power of attorney can come into effect immediately or it can specify it will come into effect on a specific date or when a specific contingency occurs.  Part I of the Substitute Decisions Act governs what is involved in making a continuing power of attorney for property.

A power of attorney for personal care authorizes the person (or persons) named to make substitute decisions regarding the grantor’s personal care.  Part II of the Substitute Decisions Act sets out the law relating to powers of attorney for personal care.  Unlike a continuing power of attorney for property, which can take effect immediately, a power of attorney for personal care only takes effect when the grantor is incapable. 

If someone becomes incapable without having made powers of attorney, it’s not the end of the world – a prospective guardian can bring a court application to be appointed.  However, this can be a long and costly process (and the incapable person may end up paying the legal fees involved).  Additionally the person appointed may not be who the incapable person would have selected had they considered the issue while still capable.  Having powers of attorney prepared does not take long and it is relatively inexpensive – certainly less expensive than the cost of a court application!

"If Dementia Were a Country, It would be the World's 18th Largest Economy..."

Over the past week, the Globe and Mail has been running an interesting series on various issues relating to dementia

According to Alzheimer’s Disease International, an estimated 35.6 million people worldwide suffer from dementia.  By 2030, the number is expected to double to more than 65 million.  

The costs of caring for people with dementia are significant – it is estimated that more than $350 billion per year is spent on medical care and residential care. Unpaid labour by family caregivers has an estimated value of $253 billion.  Twenty years from now, the total costs are projected to exceed $1.1 trillion.  To put these numbers into context, Alzheimer’s Disease International estimates the current costs of dementia to be equivalent to 1% of the global gross domestic product – in geographic terms this amount would be equivalent to that of the world’s 18th largest economy, falling in between Indonesia and Turkey. 

While those suffering from dementia clearly need supportive care and medical treatment, they often also need financial protection. 

The financial risks faced by those suffering from dementia are wide ranging.  In some cases, the extent of an individual’s diminished capacity is not spotted quickly enough (or, if it is, there is no one with the authority to make financial decisions on the individual’s behalf).  This can lead to situations where the person enters into unwise financial transactions or is taken advantage of by unscrupulous acquaintances or relatives.  The Ontario Superior Court of Justice’s decision in the much discussed case of Banton v. Banton (involving an 88 year old retirement home resident who married a 31 year old waitress at the home) illustrates the devastating effects that incapacity can have on the financial decisions someone makes.

In other situations, an elderly person’s diminished capacity can provide a battleground for fighting family members, all of whom are convinced that they ought to be the one to control the individual’s finances.  The ongoing case of Abrams v. Abrams provides a good example of the complexity and scope of litigation that can emerge when family members, all with the stated objective of protecting an incapable person, become pitted against each other.

On a non-litigious note, elder mediation is growing in popularity, although it is still fairly new.  The idea behind elder mediation is to get everyone in the same room with the joint objective of getting the individual with dementia the best care.

Helpful Tips for Avoiding Negligence Claims for Estates and Trusts Lawyers

I came across an interesting article in the September edition of “Risky Business”, the magazine published by LawPro, the liability insurer for lawyers in Ontario.  The article details the various “malpractice hazards” which arise in various practice areas. 

In the area of wills & estates, the types of claims lawyers face appear increasingly influenced by the demographics of the population.  Specifically, with the aging population, LawPRO sees an increased risk of claims arising because of issues related to a client’s capacity.  In addition, the number of elderly individuals with large estates just increases the incentive that families will have to fight and the potential that those disputes will entangle the lawyer who did the estate planning.  

LawPRO makes the following suggestions of ways to reduce the risk of a claim:

a)    Be on the lookout for signs of undue influence.  In situations where the client is making drastic changes to his or her will, explore who is benefitting from the changes and what has motivated the client to make them;

b)    Make sure to meet with the client alone to ensure that the client understands the legal implications of what he or she is instructing you to do and is making decisions freely;

c)    Clarify who you are acting for and taking instructions from so as to ensure there is no conflict of interest.  This is particularly important when your initial contact is not with the client but rather with a family member of the client; and

d)    Make sure to satisfy yourself about your client’s mental capacity and, just as importantly, make sure to document what enquiries you made in case your client’s capacity is later challenged.

When litigation over an estate occurs, the reasons are frequently unrelated to the lawyer who did the estate planning.  However, angry beneficiaries don’t always feel that way.  It is always a good idea for a lawyer doing estate planning to ensure that he or she will be protected in the future if issues involving the will or the client’s capacity arise.   

Welcome to the Toronto Estates and Trusts Monitor

I am pleased to announce the launch of my new blog.  I hope to update it often, so make sure to come back frequently to see what’s new. 

If you feel like sharing the content, the share link will allow you to post the blog on various social media sites, such as LinkedIn, Facebook, and Twitter or email it to others. 

I’m always happy to hear from my readers, so if you have any questions, comments, or topics you would like me to blog about, please feel free to email me using the enquiry form on the contact page.  

Have a great day!

Megan F. Connolly