On Thursday June 20, 2024, the Ontario Bar Association’s Elder Law Section hosted its 2024 Elder Law Day which focused on addressing advanced issues in Elder Law. Participants came together to learn from experts in their field regarding the latest developments in the law and the current issues impacting our aging population. Below, is a summary of some of the key takeaways from the day.
Panel 1: Dispute Resolution Options and How to Implement Collaborative Law into your Practice
During the first panel, Kristine Anderson – Fern Law, Nicola Savin – Birenbaum Steinberg Landau Savin & Colraine LLP, and Suzana Popovic-Montag – Hull & Hull LLP, engaged in an innovative discussion regarding dispute resolution options and the use of collaborative law in the practice of estate litigation and elder law.
Collaborative law was introduced as a dispute resolution process whereby the lawyers involved agree to take a cooperative, non-adversarial approach to address a dispute – as opposed to mediation, arbitration or litigation, and involves the parties jointly retaining third party professionals trained in collaborative law, such as mental health and financial professionals. The process was born out of a recognition that family law involves not just legal issues, but financial and emotional ones as well, a similarity to estate and elder litigation as pointed out by the panelists.
The process of resolution is client driven, with agenda set meetings chaired by the third-party individuals who manage the conflict and work with both sides to resolve the dispute.
The discussion amongst the panel members focused on the implementation of collaborative law to estate and elder law specifically. The panelists acknowledged that not all cases would be suitable for the collaborative law process. One such example was identified by Ms. Anderson as cases where there is a specific question of law – such as an interpretation of a Will. Kim Gale, the moderator of the panel, also identified that certain matters would need to involve the court where court orders would be required – such as an order seeking productions or appointment of an estate trustee. For such circumstances, Ms. Gale spoke to adjusting the collaborative law process to accommodate these situations.
Ms. Popovic-Montag relayed that while it would take a paradigm shift to adopt collaborative law in estate litigation – as it involves a different way of thinking – there are cases that would benefit from such a process. She specifically identified Power of Attorney and Guardianship struggles where family dynamics play a pivotal role; the outcomes are difficult to predict, and the litigation is costly. In such cases she identified collaborative law as an option for families who are looking to maintain the relationships involved.
Panel 2: Working Effectively with Other Professionals
In keeping with the theme of collaboration, the following panel, moderated by Amelia You – Elm Law PC, centered on working effectively with other professionals and provided diverse insights from Galit Liffshiz – GLA Rehab, Audrey Miller – Elder Caring Inc, and Robin Spurr – CIBC.
Bank Policy on Incapacity
Robin Spurr, senior estates counsel at CIBC, discussed what occurs when the bank is notified that an account holder has become incapable. Ms. Spurr detailed how the bank employs a presumption of capacity that is maintained until they are notified otherwise. Once notified, the bank restricts the client’s access to their funds and a substitute decision maker will need to be added to the account to act for the client by providing proof of their authority as the client’s substitute decision maker, such as a validly executed Continuing Power of Attorney for Property, or a Court Order confirming their appointment as guardian for property.
Ms. Spurr also provided guidance in situations where disagreement occurs between substitute decision makers that have been appointed jointly. She explained that the bank is not in the position to determine whose instructions they should be taking, and therefore will require instruction from both substitute decision-makers. Even where the substitute decision-makers are acting severally, if competing instructions are given, the bank will likely not be able to act and, where agreement cannot be found, will require the substitute decision-makers to get a court order. In such a case, Ms. Spurr advised that a Draft Order be given to the bank to ensure there are no issues in implementing the financial operations set out in the Order.
Role of Geriatric Care Manager
The role of a geriatric care manager and how their involvement can be beneficial to the clients of elder law practitioners was introduced and elaborated on by Audrey Miller, a recognized expert in senior caregiving issues. Ms. Miller explained that a geriatric care manger is typically a registered social worker or occupational therapist who helps to not only coordinate care on behalf of their clients, but acts as the client’s advocate and quarter back when navigating care plans, family members and beyond. While lawyers, judges and the other professionals involved in elder law cases have their unique roles to partake in, a geriatric care manager’s sole interest is in the elderly client and ensuring that their needs are met. They begin by providing a comprehensive functional, cognitive, social, and emotional assessment of the individual during which they will speak with the individual themselves as well as their family members, caregivers, doctors, treatment team, specialists, and any other individuals involved in the care of the senior. From the assessment, a detailed care plan is developed and modified with the client, who is then ultimately connected to community resources and supports, as needed.
Role of an Occupation Therapist
Galit Liffshiz, owner and president of GLA Rehab Inc., provided a detailed overview of the support that an occupational therapist (OT) can provide for an elderly individual through use of a functional assessment. The OT can assess both their client’s ability to complete self-care, homemaking, and community tasks as well as their safety and independence. The purpose of the assessment is to determine the overall accessibility of their environment and recognise any obstacles that can be addressed so as to optimize the individual’s quality of life. The assessment may involve standardized evaluations as well as functional observations in order to receive objective information beyond what is relayed by the individual and their family members.
Panel 3: A Look at the Current Legal Landscape and Emerging Trends
The third panel of the morning addressed the current legal landscape and emerging trends in the field. The panel was moderated by Sydney Osmar – Hull & Hull LLP, and featured Bethanie Pascutto – Advocacy Centre for the Elderly, Nithila Murugadas – NIKA LAW LLP and Joanne Hwang – Hwang Law, who addressed the respective topics of Notice of Security Interests (NOSI) and Mortgage Schemes, Power of Attorney Disputes, and Guardianship Applications.
NOSI and Mortgage Schemes
The panel began with Ms. Pascutto addressing the issue of mortgage and other fraudulent schemes targeting elderly Canadians, and the legislature’s response with the recent passing of Bill 200, The Homeowner Protection Act, 2024. Ms. Pascutto began by explaining how Notices of Security Interest (or NOSIs) are being used to victimize seniors in Ontario. A NOSI is a legal claim registered on title to a property. It is often used by businesses to secure payment for financed or leased items, such as water heaters or furnaces.
The scheme typically involves perpetrators from a home service company going unsolicited to the door of a vulnerable senior and offering them unnecessary home upgrades. The Advocacy Centre for the Elderly has described that in “most cases, the products and services are grossly overpriced and provide little-to-no value. In some cases they are completely bogus and fraudulent.” Once the contract with the fraudster is signed, a NOSI is then registered on title to their property.
Though too many seniors have already fallen victim to this scheme, Ms. Pascutto spoke of the recent action taken by the Ontario Government to try and prevent these NOSI and mortgage schemes from occurring. On June 5, 2024, Bill 200, The Homeowner Protection Act was passed which stops any further NOSIs related to consumer goods being registered in the Land Registry, and deems all consumer NOSIs registered before June 6, 2024 as expired as of June 5, 2024.
Power of Attorney Disputes
Ms. Murugadas spoke next on the emerging trend of Power of Attorney disputes. She highlighted how loved ones of an incapable person frequently want the authority of being their substitute decision maker; however, do not appreciate the responsibilities of the role. As such, Power of Attorney disputes largely arise when said substitute decision makers fail to properly perform their duties. Ms. Murugadas outlined three specific instances of disputes arising for both Attorneys for Property as well as for care.
Causes of Power of Attorney for Property Disputes:
- Failure to keep accounts
- Lack of transparency
- Self-dealing /Gifting
Causes of Power of Attorney for Personal Care Disputes:
- Restricting access to loved ones
- Disagreements with the substitute decision maker for property regarding care expenses
- Acting against the grantor’s wishes
Ms. Murugadas shared how these causes of disputes are largely due to a lack of understanding on the part of the substitute decision maker. Ms. Murugadas recommended that practitioners can help prevent these disputes by drafting comprehensive Power of Attorney documents that inform substitute decision makers by setting out their legal responsibilities and guide them by including the grantor’s explicit directions and wishes.
Guardianship Applications
Ms. Hwang concluded the panel by speaking on the emerging trends in Guardianship Applications. Ms. Hwang began by informing the audience that Guardianship Applications are often brought when the incapable party has no Power of Attorney in place, there is a Power of Attorney in place but its validity is being challenged, or if there is concern that the substitute decision maker is not acting in the best interest of the incapable person. Ms. Hwang advised that she has identified a trend in the last 15 years where she has seen a decrease in contested Guardianship Applications, likely attributed to the fact that people today are more cognizant of the necessity of incapacity and estate planning, likely as a result of an increase in legal education due to the pervasiveness of social media and access to legal websites. Ms. Hwang concluded by noting how this hopefully continuing trend not only benefits families by reducing tension but is also a benefit to the public by reducing strains on the court.
Panel 4: Case Law Update
The last panel of the morning was also moderated by Sydney Osmar and featured panelists Shawnee Matinnia – Hull & Hull LLP, Birute Luksenaite – Portfolio Estate Law, Palak Mahajan – Gale Law Professional Corporation and Priyanka Bahl – Elm Law PC, who provided updates on recent case law addressing various elder law issues including, capacity, undue influence in the context of multigenerational families, updates on MAID and Law Society tribunal hearings, disciplining lawyers involved in predatory mortgage loan schemes targeting vulnerable seniors.
Panel 5: Serving the Baby Boomer Generation: Your Aging Client Base
The final panellists of the day, Kimberly A. Whaley – WEL Partners, Matthew Urback – Shibley Righton LLP, Kelley Bryan – Perez Bryan Procope LLP and Bryan Gilmartin – WEL Partners, shared their expert guidance on working with elderly clients and key issues that may arise. Topics included: dealing with clients whose incapacity may be in question and how to ascertain as such, how to navigate a client’s overbearing “supportive” family member or friend, how to address concerns of undue influence, and best practices for accommodating elderly clients who may have certain impairments associated with age. Audience participation during the panel was encouraged with members sharing what steps they would take in hypothetical situations posed to them.
Keynote Address & Elder Law Award of Excellence Presentation: Judith A. Wahl
The keynote address by Sidney Peters, the Public Guardian and Trustee (OPGT), took place during the lunch break. Attendees had the opportunity to learn about the history of the Office of the Public Guardian and Trustee, as well as to receive key updates and insights from Ms. Peters regarding the OPGT’s modernization.
The keynote address was followed by a celebration and tribute to the life work of Judith A. Wahl, who passed away on May 15, 2024, and who was the recipient of the 2024 OBA Award for Excellence in Elder Law.
The award was accepted on Judith’s behalf by Jane Meadus, staff lawyer and institutional advocate at the Advocacy Centre for the Elderly (ACE). Ms. Meadus gave a heartfelt tribute on Judith’s life and her life-long devotion to the field of elder law. She highlighted that when Judith began practicing elder law, there was no such defined field. It is because of Judith’s work and mentorship that the field of elder law in Canada exists as it is today. In 1984, she became the first employee and executive director of ACE and worked to carry out her mission of supporting seniors, protecting their rights, and ensuring their autonomy.
Ms. Meadus spoke of the many achievements throughout Judith’s decades long career, some of which include her: appointment to the Attorney General’s Committee on Substitute Decision-Making for Mentally Incapable Persons which culminated in the Fram Report, appointment as a member of the O’Sullivan Committee for the Review of Advocacy for Vulnerable Adults in Ontario, and appearance on behalf of ACE before the Supreme Court of Canada in Nova Scotia (Minister of Health) v JJ.
What stood out most throughout Ms. Meadus’ speech was Judith’s passion and advocacy for the rights of seniors and her continuous fight against injustice. Though Judith is no longer here to continue her work, as Ms. Meadus acknowledged, Judith’s contributions to elder law will survive her and her passion will hopefully continue in the next generation of lawyers who will follow in her footsteps.
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