Articles

With over 7 million Canadians aged 65 and older, and one in four identifying as part of a racialized group, the importance of cultural competence for lawyers is growing. This article examines how cultural competence intersects with the nuances of providing legal services to an aging population and offers practical tips to enhance your cultural competence.

At a recent OBA Elder Law Section program on representing elderly clients in litigation, participants learned about navigating the complexities of representing elderly clients with a focus in estates, personal injury and employment law. Key takeaways included indicators to watch for when assessing a client’s capacity, tips for addressing frequent concerns or difficulties that can arise and how to address them, and understanding the difference between section 3 counsel and litigation guardians.

On Thursday, June 20, 2024, the OBA  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.  

As the Canadian population continues to age, elder financial abuse remains a growing concern. Financial elder abuse cases may seem clear cut, but they can present numerous challenges that make the road to resolution difficult for litigators. This article summarizes the key challenges that present themselves when lawyers take on elder financial abuse cases and highlights the strategies that they can employ to combat these challenges, even before the case begins. 

This article explores the ethical issues in getting consent and assessing capacity for elderly individuals with cognitive impairments. As the global population gets older, it is crucial, now more than ever, to protect their independence in legal decisions-making. Lawyers can employ strategies such as effective communication, advocating for advance directives, facilitating choice processes, and upholding ethical principles.

This article explains how capacity and consent laws guide the appointment of decision-makers and consent protocols for legal and medical matters. Kim Gale and Jessica Campolucci stress the importance of assessing seniors' capacity on a case-by-case and the role of attorneys and guardians in safeguarding their interests. The article aims to empower legal practitioners with the knowledge to uphold seniors' autonomy and dignity in decision-making.

This article sheds light on the reality of elder abuse in our society today and its unfortunate increase in prevalence as our population ages. Seven different types of elder abuse are identified as well as the harmful behaviours commonly associated with each. The aim of the article is to highlight red-flags that legal practitioners should be on the look out for when meeting with elderly clients and to provide practise tips for identifying and addressing signs of elder abuse.

The authors explore the rising issue of elder financial abuse in Ontario, affecting 4-10% of seniors. The article identifies ten signs of financial exploitation, stresses the role of lawyers in prevention, and discusses legal recourses such as criminal charges and protective services. Emphasizing the urgency of addressing this problem, the authors advocate for a multi-faceted approach, including updated legal documents and awareness initiatives to protect seniors' financial well-being.

On October 19, 2023, experts gathered on the OBA’s panel and provided meaningful insights on comprehensive end-of-life planning. Beyond wills, the panel emphasized the importance of key documents, such as powers of attorney and advance care directives, to ensure that end-of-life wishes are well understood, documented, and followed. The audience was also reminded of the significance of family involvement, transparent communication, and early initiation of uncomfortable discussions.

This article details the Queen’s Elder Law Clinic's (QELC) initiatives to improve access to justice for seniors in South Eastern Ontario. Run by Queen’s law students, the QELC provides free legal services, specializing in drafting wills and powers of attorney. Offering pro-bono estates and elder law services to local seniors facing financial constraints and diminished capacity challenges, it emphasizes a client-centric approach and provides invaluable client-facing work experience for students.

Understanding and addressing the impact of trauma on clients and practitioners is crucial for compassionate and effective representation. The Trauma-Informed Lawyering panel, co-hosted by Ontario Bar Association’s Elder Law Section and Family Law Section on November 3, 2023, offered valuable insights and strategies to enhancing legal services with a trauma-informed approach.

The OBA Elder Law Section held its 2023 Elder Law Day on March 28, 2023. Concerns on issues of how the elderly are impacted by capacity issues, when and in what instances should litigation guardians be used, and how lawyers should assist clients with their care needs were the fulcrum of the three panels that had key experts in the industry. The Honourable Justice Gillese who was the keynote speaker.

The recent case of Bradford Estate v. Kingdon, 2022 ON SC 6204 should be of great interest to elder law practitioners as it interprets the Family Law Act in such a way that could create a great inequity for clients in very specific circumstances. Specifically, this case impacts clients who are going through what the media would term “grey divorce”, meaning they are separating from their spouse as an older adult.

This article reviews a recent BC Supreme Court case that revisited the principles to be considered when the court determines whether or not to order a capacity assessment in a guardianship proceeding; further, the article provides guidance for requesting and/or conducting effective capacity assessments. 

Medical Assistance in Dying (MAID) is shifting. This article looks at upcoming amendments to the 2016 federal legislation. The author explains aspects of advance consent introduced in Bill C-7 which provides new perspective on who can and should be able to consent to MAID, as well as the timing and the level of consent required by those seeking medical assistance in dying.

The 2022 OBA Award for Excellence in Elder Law was recently presented to Melissa Miller of Howie, Sacks & Henry LLP.

Commentary on the Ontario Government's recent legislation allowing designated hospital staff to move patients to a long-term care facility without consent of the patient. In the authors' view, the legislation is problematic on several fronts.

Sometimes an executor has to administer an estate asset when the original Will is not available. Here's a tip.

Not all income splitting is allowed in Canada, but one tax planning strategy to consider involves a prescribed rate loan as explained here.

A strategy for how elder parents can manage joint bank accounts from the perspective of a professional executor.

This national resource focuses on Elder Abuse & Neglect Law - this tool is invaluable for its ease and comprehensive overview of the law and resources in each province & territory, including two best-practice modules.

In October 2021, The Law Commission of Ontario released the first part of its report on how professionals and organizations can better serve clients regarding end-of-life care. The list here summarizes the recommendations relevant to health and estate lawyers.

A recent seminar offered by seasoned estate and family law practitioners highlighted the intersection between estate disputes and family law. Amelia Liu provides a succinct summary of the discussion.

Further regulation is required to protect vulnerable homeowners from door-to-door sales practices. Some homeowners rent equipment and later discover a lien was registered against their property. The cost of removing that lien to "buy out" the contract is often a shock to those homeowners.

The Trusted Contact Person reforms by Securities, Life Insurance and Banking regulators are designed to overcome privacy barriers which limited proactive steps by advisors and dealers to protect investors in specified circumstances. Although the progress is uneven, policies are moving in the right direction.

Recent case law: predatory marriages and the test for capacity in Ontario. Does the current threshold for capacity to marry encourage predatory marriages?

A quick review of Elder Law - it's a broader term than you may think.

Recent case law in Ontario illustrates how the Courts exercise their gatekeeping function to ensure litigants in Will challenges meet a minimum evidentiary threshold. These cases provide important guidance for counsel and parties preparing for similar threshold motions.

A summary of recent changes to Ontario's estates laws.

A summary of the ongoing evolution of MAID in Canada and the implications of Bill C7.