Defining Elder Law can be a challenge. On one hand, all laws affect older adults in the same way as any other adult. On the other, there are certain areas of law that overwhelmingly impact older persons more, such as the rights of residents in retirement and long-term care homes. Fortunately, there’s an intensive program being offered this winter/spring that attempts to cover it all. Jane Meadus, Staff Lawyer and Institutional Advocate at The Advocacy Centre for the Elderly and Alex Procope, partner of Perez Bryan Procope LLP are pleased to again co-direct the Osgoode Certificate in Elder Law Program. Here’s a quick overview of 5 (of many more) interesting things you will learn:
Dementia Myths are Everywhere
A dementia diagnosis does not mean a person is mentally incapable or severely disabled. Over half of those with dementia have a functional ability of good, mild or moderate. Nor do most people with dementia live in a long-term care home. Approximately half of the persons with dementia live in institutions while the other half lives in the community.
There are Specific Rules that Apply to Substitute Healthcare Decisions
Substitute decision-makers (such as the attorney for personal care or family members) have principles they must follow when making healthcare decisions for incapable people. First, no one has authority to make these types of decisions on behalf of another person unless that person has been found incapable, even if named in a power of attorney for personal care. When making a decision for an incapable person, it must be made in accordance with applicable prior capable wishes where they are known. If there are none, the decision must be made in the incapable person’s best interests, which includes consideration of the patient’s values and beliefs; any current incapable wishes; and the likely impact of the treatment. Health practitioners don’t always explain these rules to substitute decision-makers, but they should.
There are Indicators of Undue Influence
Undue influence can be a form of elder abuse. It is the legal concept applicable when one person’s will is overcome by the will of another person. A cognitive disorder such as dementia can result in a person being more vulnerable to undue influence. Among other things, indicators of undue influence can be dependence on the other person for emotional and physical needs, social isolation, recent family conflict or bereavement. Simply being an older person that decides to change beneficiaries or executors of his or her will is not evidence of undue influence.
Retirement Homes in Ontario are Subject to the Same Landlord-Tenant Rules of Any Other Rental
A retirement home is a rented tenancy that provides care services for a fee. They are subject to the same rules as any other rentals under the Residential Tenancies Act along with special requirements under that Act because they are care homes. Additionally, Retirement Home-only rules are set out in the Retirement Homes Act, which includes such things as the Residents’ Bill of Rights.
No One Should be Asked to Consent to Sexual Contact on Behalf of an Older Person
Neither family members, nor attorneys or guardians of personal care have authority to determine what sexual expression is permitted between capable individuals. Capable individuals make those types of decisions for themselves. Where incapable individuals cannot consent to sexual activity, substitute decision-makers cannot consent on their behalf.
The Certificate Program is a 5-day (one day per week) intensive program beginning on January 29, 2019, at the Osgoode Professional Development office in downtown Toronto. The faculty is renowned and provide expertise from various disciplines. Delates to this program have typically been lawyers, long-term care and retirement home personnel, physicians, risk managers, social workers, and other health professionals.
Financial assistance is available to those who qualify. For more information and to register please go to Osgoodepd.ca/elderlaw.
Alexander Procope is a partner at Perez Bryan Procope LLP and co-director of the Osgoode Professional Development in Elder Law Program. Mr. Procope’s practice is concentrated in capacity, guardianship, and power of attorney matters. He has frequently been appointed as counsel for allegedly incapable persons in high conflict family disputes. He is a member-at-large on the Ontario Bar Association’s Elder Law and Trusts and Estates Law Sections.