On November 6, 2024, I had the pleasure of attending the Ontario Bar Association’s virtual webinar on representing elderly clients in litigation. The event brought together legal professionals from a variety of backgrounds and practice areas, including estates law, employment law, personal injury law, and mediation to discuss the legal considerations, and potential complications, that accompany representing older clients.
The webinar was chaired by Jonah Waxman of Weirfoulds LLP and featured four speakers: Lidia Mariam Benoji of Elm Law PC, Daniel Fisher of Howie, Sacks & Henry LLP, Trevor Moum of Pallett Valo LLP, and Stuart Rudner of Rudner Law.
ELDERLY CLIENTS IN AN ESTATES PRACTICE
Ms. Benoji began the webinar by discussing tips and best practices that can be incorporated into an estates practice. She shared that in the context of estate litigation, there are often personal, familial history and emotions involved, and concerns about an elderly client’s capacity adds a further layer of complexity. As the baby boomer generation continues to age, lawyers are facing more and more clients with some form of dementia, and client management needs to adapt accordingly.
She provided several indicators to watch for when dealing with older clients to assess capacity, including whether:
- your initial contact with them was through them directly or with a family member or friend;
- they could express their needs and expectations clearly;
- they can complete an intake form independently;
- they return follow-up calls or forget previous conversations you have had with them; and
- they can remember the date and time of scheduled appointments.
Ms. Benoji stressed that caution over a client’s capacity begins at the very first point of contact, and every interaction is an opportunity to assess capacity. With that said, capacity is not the same across the board, and the level required will vary depending on the task or decision being made. Interestingly, Ms. Benoji noted that external factors can also influence capacity, including stress, an unfamiliar environment, medications, and even the time of day.
She concluded by highlighting some general considerations to keep in mind, as follows:
- An elderly client’s slow speech or actions may be the result of medications and should not be interpreted as incapacity.
- Accessibility software should be used when needed, such as for clients with impaired vision.
- If a client is distracted by mental health disabilities or medication side effects, it may be helpful to focus on the main goal of the meeting or offer to reschedule.
- Difficulties in understanding the procedural aspects of litigation does not mean a client does not have capacity to instruct or understand the issues involved.
- Family members of an elderly client may not believe they have capacity, for example due to a dementia diagnosis, even if you determine that they do.
- A negative assessment experience, such as where a client considers the assessor rude or dismissive, may lead the client to refuse to answer questions, which in turn may result in a negative capacity assessment where there is not a true lack of capacity.
CAPACITY ISSUES IN PERSONAL INJURY PRACTICE
Mr. Fisher then provided his perspective on elderly clients in the context of personal injury actions, particularly the subspecialty of nursing home negligence.
He described two issues that he frequently encounters. The first involves court approval process for settlements involving an incapable person, which he explained serves to protect incapable persons from improper settlements. The ongoing delays caused by the COVID-19 pandemic are a significant problem in these circumstances as it forces litigants, some who may be waiting for their settlement payment to receive crucial medical treatment, to wait months for approval. To address these issues, Daniel stressed the importance of client management and ensuring the process runs as smoothly as possible.
The second issue relates to the ethical concerns involved in assisting elderly clients. Like Ms. Benoji, he highlighted the need to keep track of and assess a client’s capacity at all steps of the retainer, particularly where that capacity might fluctuate day to day. Counsel should also be assessing the person making decisions on behalf of an incapable person to ensure that they are truly looking out for the incapable person’s best interests. Further, if the elderly client is capable but someone else, such as their child, is assisting, counsel must make it clear that they can help, but they do not take instructions from them.
Mr. Fisher then discussed some more general points to consider, including:
- the need to continually push the case forward to avoid allowing the natural issues associated with age to materialize;
- general damages and the golden years doctrine, which states that a person’s final years of life are more valuable and injuries sustained then should attract greater compensation;
- costs of attendant care, specifically that a plaintiff is not disentitled to these costs simply because their spouse is providing the care;
- hiring experts with geriatric specialties when possible; and
- compensation for family members under the Family Law Act for loss of care and companionship, even where the injured elderly person was not providing care.
SECTION 3 COUNSEL AND LITIGATION GUARDIANS
Mr. Moum concluded the presentations by comparing the roles of section 3 counsel under the Substitute Decisions Act and litigation guardians. He explained that section 3 counsel are appointed to represent a person whose capacity is in question but who is still capable of giving instructions; therefore, it involves a normal solicitor-client relationship.
He provided a helpful outline of the duties of section 3 counsel, using the summary in Sylvester v. Britton, 2018 ONSC 6620:
- To seek instructions from their client and act on them. If section 3 counsel cannot obtain instructions, then they cannot act;
- To keep confidential all communications with the client and all information they obtain from them on their behalf;
- To diligently and ethically advance the client’s interests in accordance with their instructions;
- To ensure that legal, procedural, and evidentiary requirements are tested;
- To make the client’s position or wishes known to the court; and
- If the client lacks capacity to instruct, to promptly take steps to appoint a litigation guardian.
Capable instructions are a task-specific inquiry, but courts have provided some guidance. In Costantino v. Costantino, 2016 ONSC 7279, the test was described as follows:
The client must:
- Understand what they have asked counsel to do and why;
- Understand and process information, advice, and options counsel presents; and
- Appreciate the advantages, drawbacks and potential consequences associated with those options.
Because this is a fact-specific inquiry, there are misconceptions around what it means in practice; for example, some believe this is a higher threshold than the capacity required to manage property and personal care, which Mr. Moum noted is not necessarily true.
In contrast, litigation guardians are not lawyers but can make decisions and act without instructions. If the test for capacity to instruct is not met, then the litigant may require a litigation guardian. The test is as follows, from Huang v. Braga, 2016 ONSC 6306:
- The person must appear mentally incapable with respect to an issue in the case; and
- As a result of being mentally incapable, the person requires legal representation to be appointed by the court.
Additional factors include the person’s ability to understand the minimum choices or decisions required and to make them. Again, whether a litigation guardian is required or not is a task-specific analysis, as instructions can be limited and need not be highly detailed and complex to accommodate.
Q&A PANEL DISCUSSION
Following the presentations, Mr. Waxman hosted a panel Q&A discussion with the three presenters and Stuart Rudner, an employment lawyer and mediator. Some key takeaways are below:
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In settlement discussions with elderly clients, it is important to do a cost-benefit analysis and recognize that it is not always the legal dispute or money that is really at issue, but rather the emotional aspects.
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Age-related discrimination and bias can be difficult to prove in the employment context, particularly if there is no evidence of systemic discrimination.
- Employers have a duty to accommodate to the point of undue hardship, but age does not have to be accommodated if the employee is not limited by it.
- In high-conflict, emotional estate disputes, it is important to set expectations and to walk a fine line of avoiding inflammatory material that will not add to the dispute and cause further division, while also ensuring important facts are not omitted.
- In mediation, it is crucial to ensure the mediator knows that it is the client making the decisions, and not a family member or other support person controlling or dominating the discussion.
- Technology can be both a barrier and an opportunity when dealing with elderly clients, but it is important to understand that it cannot substitute a lawyer-client relationship, especially in emotionally charged practices. It is even more important to meet elderly clients in person to assess capacity and observe their family dynamics.
As a recent call, I found the webinar to be highly informative, and it gave me a number of things to consider when representing elderly clients. I thank the organizers of the program, the presenters, and Mr. Waxman as chair for providing their perspectives and for facilitating a great event.
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