Protecting Canada's Seniors Act

Did you know that a new law called "Protecting Canada's Seniors Act" has now been enacted? To read a commentary about it by Audrey Miller of www.allaboutestates.ca, an expert on seniors' issues, click here.

This new law, also called Bill C-36, makes an amendment to our existing Criminal Code. It does NOT create a new crime of elder abuse. What is does do is add a bit more juice to a judge's power to punish someone who is guilty of elder abuse.

In our Criminal Code, there are a number of things that a judge can take into consideration when deciding what sentence a person should get for a crime. Some are aggravating factors that would cause the judge to give a harsher sentence. These would be things like the accused having a record of similar crimes.

The judge can also take mitigating factors into consideration. These are things that would cause a judge to give a lighter sentence, such as a thief returning what he stole.

The aggravating and mitigating circumstances that a judge can consider are set out in section 718.2 of the Criminal Code. The new law, Bill C-36, adds a new aggravating factor - that being “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation”.

In other words, the judge may consider giving a harsher sentence to someone convicted of elder abuse.

Now we just have to figure out how to make sure that elder abusers actually end up in court. That will be no easy task, partly because so many perpetrators are family members and know exactly how to conceal their actions and persuade their elder family members not to expose them.

For those of you interested in elder abuse issues, I'm adding some new links to the "interesting links" section of this blog. Hope you find them useful.

Canadian Conference on Elder Law 2012

I recently received this notice from the National Initiative for Care of the Elderly.   Canadian Conference on Elder Law 2012 The British Columbia Law Institute and The Canadian Centre for Elder Law presents: Canadian Conference on Elder Law 2012 Vancouver, B.C. Nov. 16-17, 2012 Advocacy and Aging: From Storytelling to Systemic Change A must-attend event for professionals working in the field of aging: The critical issues affecting older people and the laws that support their needs. This year's conference, Advocacy and Aging: From Storytelling to Systemic Change, will focus on issues of capacity, capability, support, public/private guardianship, monitoring, accreditation, inter-jurisdictional recognition, mobility, standards and law reform. Keynote Address: Madam Justice Marion Allan (Supreme Court of B.C., Retired) Distinguished Lecture: Candace Heisler (Professor and Elder Abuse Consultant, U.S.A.) Select Experts include: Kim Carter, Ombudsperson of B.C. Jay Chalke, Q.C., Assistant Deputy Minister (Canada) Catherine Romanko, PGT BC (Canada) Jan Goddard (Canada) Sue Field (Australia) Rebecca Morgan (U.S.A.) Kim Whaley (Canada) Ian Hull (Canada) Douglas Melville, Ombudsman for Banking Services and Investments (Canada) Special Study Stream: Women and Aging: legal issues impacting older women, partly funded by the United W! ay of the Lower Mainland Who Should Attend: Lawyers and students practicing in estates or with older adults as clients, Professors and other academics with an interest in aging issues, Healthcare professionals, change advocates, financial planners, social workers, government and regulatory professionals. What you Will Learn: Participants will learn about legislation and caselaw relevant to guardianship, property and IP law, housing law and ethics. Participants will also learn about issues related to human rights, elder abuse and emerging legal issues related to the rapidly aging population. Cost: $525 per person plus HST When: November 16 - 17, 2012 Where: Sheraton Wall Centre, Vancouver, B.C. Credits: Eligible for 11.25 CPD credits including 2 hours of Ethics www.ccel2012.com Register Today! Space is Limited

Practical Guide to Elder Abuse and Neglect Law in Canada

BC lawyer Stan Rule talks about the new "Practical Guide to Elder Abuse and Neglect Law in Canada" which has been published by the Canadian Centre for Elder Law. Click here to see his article and to get access to the report.

Queen's University opening new Elder Law clinic

I'm thrilled to learn about this new venture, the first by a Canadian law school. Queen's University has opened a clinic that is staffed by law students and supervised by lawyers. That part isn't new of course, but the clinic is groundbreaking in the area of law it services. Seniors who can't afford lawyers can get help with things like making Powers of Attorney or resolving difficulties with a long-term care facility.

I participated in a law clinic for one-half of my third year at UBC law school, but I don't recall ever been consulted by anyone on what I'd call an elder law issue. This new clinic, however, is being set up specifically to help seniors.

People using any law student clinic need to understand who is working at the clinic. They are not experienced lawyers, but are students who are in their second or third year of a three-year program. They are of course supervised closely by qualified lawyers. While the students may not have years of client files to draw from, remember that they are people who have chosen to work in elder law and who competed for a spot in the clinic because they are interested in seniors' issues.

To learn more about this clinic and what it can do for you or your aging parents, click here.

When to bring in a third party to resolve family disputes

This is probably the best article I've read about elder mediation, as it's packed with information, explanations and ideas. Click here to read this article from Chris Cooper, a certified financial planner.

Elder law attorneys are needed more than ever

If you've ever wondered how Elder Law is different from Wills and Estates Law, here's your answer. And if you've got an issue related to aging and you're not sure whether there are lawyers out there who can help you, maybe this article will answer your question. Click here to read it.

Elder abuse and caregiving resource materials

For those of you who have asked me how you can get copies of the booklets and checklists I have from the National Initiative for Care of the Elderly, click on this link to get to the page for ordering their tools. Once you're on the page, you can click on the topics on the left hand side of the page if you want to know more about them.

Canadian Conference on Elder Law

This year's theme for the conference is "Developing an Anti-Agist Approach to the Law". Registration is open now. Click here to register online or just to find out more about the conference. It is being held in Toronto from October 28 to 30, 2010.

Financial abuse - what every older Canadian should know

This is one of a series of informational pamphlets available from the Canadian Network for the Prevention of Elder Abuse. I'm including this link for anyone who is looking for materials on this topic. You'll notice that the homepage also includes plenty of other related material as well. Click here to view the pamphlet.

Canadian Elder Abuse Training and Information Forum

Those of you who have told me you want more information about Elder Abuse are in for a treat! This upcoming forum might be just what you need. Age and Opportunity Manitoba is holding a two-day forum in Winnipeg in October, 2010.

From their webpage: "The goal of this training forum is to provide education and increase awareness of the abuse of older adults across Canada. Participants will be provided with increased resources and capacity to prevent, intervene and reduce the harm associated with this issue by providing speakers and presentations from across Canada".

If you'd like to know more, click here.

The umbrella graphic is from their webpage at www.ageopportunity.mb.ca.

Seniors should focus on estate planning

There was an excellent article recently in the Toronto Sun about preventing elder financial abuse that both seniors and their children absolutely must read. It's horrifying to find out how frequently and how deeply children are hurting their own parents financially, but maybe by being aware of financial abuse, seniors can prevent it. To read the article, click here.

What happens if the beneficiary of an estate has dementia?

I find it interesting to talk to executors of estates when money or valuables are left to an elderly person who has Alzheimer's disease or other dementia. The executors' attitude is sometimes along the lines that the elderly beneficiary won't know or realize that he or she has inherited something, and certainly won't spend it, so why bother giving it to them. The executor then wonders if the elderly beneficiary's gift should be given to someone else who will appreciate it.

This goes completely against logic for me. The elderly person with dementia that prevents him or her from looking after finances is exactly the person I'd think an executor would want to protect.

I've talked in a few posts about the executor's role and the fact that the executor can't simply decide not to pay an inheritance to a beneficiary for his or her own reasons, so I won't discuss that again right now. I would like to talk about the logistics of paying an inheritance to a person with dementia.

Assuming that the beneficiary is elder and that the existence of dementia is not a question, then there is quite likely someone legally appointed to help with their finances. The first thing to look for is whether anyone under is acting under an Enduring Power of Attorney. If so, the executor can send the beneficiary's inheritance to the person acting under the Power of Attorney, to be looked after on behalf of the beneficiary.

If the elderly person with dementia did not appoint anyone under an Enduring Power of Attorney, and is disabled to the point where he or she cannot deal with an inheritance, then it is highly unlikely that he or she can still sign an Enduring Power of Attorney. In this case, the next option is to have someone appointed by the court to act as legal Trustee for the beneficiary.

Trustees are most often family members, but sometimes it happens that the elderly beneficiary will have no relatives available to do this job. Perhaps the person who left the beneficiary the inheritance in question was the last living relative. In that case, a trust company or the Public Trustee could be appointed by the courts as a trustee. The executor is perfectly within his or her rights to make a telephone call to a trust company or the Public Trustee to ask for help in determining whether he or she should pay the inheritance not to the beneficiary but to a representative for the beneficiary.

Many executors in this situation will take the attitude that going through court-appointed trustees is just too much trouble, and will simply write a cheque and deposit it into the elderly beneficiary's bank account. This solves the issue of moving the money out of the estate and into the hands of the beneficiary. However, it doesn't do anything to protect the elderly person who just inherited the money, either from strangers or from other beneficiaries who are aware that the elderly person now has money but can't manage it due to dementia.

If the executor deposits the money and doesn't have a signed Release from a person acting under an Enduring Power of Attorney or court Order, there is a risk. A beneficiary or family member of the elderly beneficiary may later realize that there was an inheritance, and if the money is no longer in the elderly beneficiary's account (either because it was dissipated or because someone scammed it from the elderly person) then the executor is going to be in a tough position. The executor can be held personally liable for a beneficiary's inheritance if he or she can't prove that it was paid to the proper person.

As an executor, take a cautious approach and ask questions as you go. You should have a legal advisor if you are faced with unusual difficulties such as an incapacitated beneficiary, both to protect the beneficiary and to protect yourself.

'Act Now to Prevent Elder Abuse'

Gordon Powers, writing about retirement for money.ca has written a really good article about prevention of elder financial abuse. What I particularly like about it is that it is crammed full of useful, practical ideas from people who have worked with seniors for a long time. Mr. Powers quoted me, among others, and included an excerpt from my book "Protect Your Elderly Parents". To read the article, click here.

Paro the robo-seal aims to comfort elderly, but is it ethical?

Interesting story in the Wall Street Journal today about a robot in the shape of a baby seal, named Paro. Nursing homes around the world are using it to comfort dementia patients. Click here to read the story, as well as the questions raised by some people about the use of Paro.

(photo from that story as well)

Can an executor review an aging parent's bank records?

Recently I was asked whether an executor named in a person's Will (in this case the person happened to be an aging parent) could legally go through the person's bank and tax records.

Assuming the person who named you as executor is still alive, then no you don't have the right to go through any private documents or records. The Will has no legal effect until the testator (person whose Will it is) has passed away.

I assume that if this question is being asked, it's because the aging parent is showing some signs of difficulty in handling his or her financial affairs. If so, you are right to start thinking about how you can offer some help. However, the Will isn't going to do anything for you. What you need is an Enduring (or Continuing) Power of Attorney.

The Power of Attorney gives someone the right to give assistance with financial, tax and property matters while the person is still alive. If there are already signs of confusion or memory loss, it might be a good idea to consider an Immediate Enduring Power of Attorney that will allow the helper to start assisting right away.

Another solution to consider is that some jurisdictions in Canada allow the aging parent to sign an agreement with a co-decision-maker. The difference is that a co-decision-maker makes decisions with the aging parent while an Attorney under Power of Attorney makes decisions for the aging parent. It is best to consider the least intrusive ideas first.

If you need to help an aging parent with finances, take action as soon as possible, because you don't want to allow the memory loss to advance to the point where options are very restricted. If you act quickly, your parent will still be able to make his or her own choice of who they want helping them.

Be sure to consult an experienced Wills and Estates lawyer because you don't want or need a "cookie-cutter" document. You want real assistance for your parent.

Can people go to jail for elder abuse?

Elder abuse refers to mistreatment of older persons both by people who are in charge of their care and people who are not in charge of their care. It can range from physical violence to extreme neglect (lack of food, lack of medical attention, etc). It also includes financial abuse such as a child helping himself or herself to an elderly parent's money, or a door-to-door scam artist targeting seniors.

In Canada, criminal offences and their punishments are governed by the Criminal Code, which applies to every province and territory. There is no specific offence of "elder abuse" created by the Criminal Code.

Any criminal offence that applies to Canadians in general obviously applies to seniors as well. Offences that could be charged as a result of mistreatment of seniors include; murder, manslaughter, assault, neglect causing bodily harm, sexual assault, failure to provide necessities of life, making threats, theft, forgery and fraud.

An interesting offence from an elder abuse perspective is the criminal offence of theft by a person holding a Power of Attorney. Perhaps this provision (section 331) should be brought to the attention of all individuals who agree to act as attorney for their parents.

Once a person is convicted of a crime against a senior, the Criminal Code also has a couple of provisions that would affect that person during sentencing. One is the fact that the judge can take into account that an offence is considered worse when it is done by a person in position of trust or power over the victim. The second is that the judge can take into account whether the crime was motivated by the victim's age or disability.

So can a person go to jail for elder abuse? They can, and they do. Here are just a few recent Canadian cases:

R. v. Grant (New Brunswick, 2009) - daughter jailed for failure to provide necessities of life when elderly mother died in circumstances of shameful neglect.

R. v. Nanfo (Ontario, 2008) - daughter jailed for failure to provide necessities of life for elderly mother, who passed away.

R. v. Peterson (Ontario, 2005) - son was convicted of failure to provide necessities of life for his elderly father who did not pass away but whose life was endangered by the son's neglect of him.

And in R. v. Foubert (Ontario, 2009), a worker in a long-term care facility was convicted of assault on a number of elderly residents of the facility.

Canadian bar association national meeting a huge success

I've just returned home from Toronto where I represented Alberta at the national meeting of the Canadian Bar Association Elder Law section. I've brought back tons of new ideas, new information and new energy! It's always useful to see that the issues facing seniors (and those of us who will one day be seniors) are the same from coast to coast and to brainstorm with other people who have the same interest in these issues as I do.

image of CN tower from www.cntower.ca

Network with other Wills and Estates professionals

For anyone working in Wills, Estates, Trusts and Elder Law who would like to meet, network with and exchange information and ideas with others in the industry, please feel free to join us at www.LinkedIn.com. Once you're on the site and have set up a profile (it's free!) look for the group called "Canadian Will and Estate Professionals" and click on "request to join". I'm the moderator of the group and will get to your request very quickly! Lawyers, accountants, trust officers, insurance representatives, business planners, financial advisors and medical professionals who deal with mental capacity issues are all urged to join us. Some of the topics posted for discussion so far include TFSAs, a horrendous but important elder abuse case and the importance of being a member of STEP. The group is growing quickly, so please check us out.

Global TV Edmonton - The early news with Lynda Steele!

Hi everyone,

Thanks for all the questions, I'll try my best to answer them shortly! I've been super busy doing all these media interviews but it's definitely well worth my time if I can help others help themselves with regards to elder law.

My interview on Global TV with Lynda Steele was an amazing experience and I'm a huge fan of hers!

Here's a link to the clip, just in case you missed it on the early news.

Global TV Edmonton & Protect Your Elderly Parents