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Jane Purdie - Elder Law

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Jane Purdie - Elder Law

Jane Purdie - Elder Law


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  • 1. Abbotsford Estate Planning Council Elder Law Issues Be aware - Be prepared
  • 2. The Senior Tsunami• In 2006 Canadians over the age of 65 = 13.1% of all adults (in 1924 = 5%)• In 2036 Canadian seniors are projected to have increased to 24.5% of all adults• The fastest growing age-group by percentage is the over-80’s copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 3. The Emergence of Elder Law• U.S. passes Older Americans Act 1965 – 1978 ABA Commission on Law and Aging – 1988 National Academy of Elder Law Attorneys (NAELA)• United Nations declared 1999 “International Year of Older Persons”• Canadian Bar Association creates national Elder Law Section 2002• 2003 the B.C. Law Institute establishes the Canadian Centre for Elder Law Studies• Special Senate Committee on Aging 2009 “Canada’s Aging Population: Seizing the Opportunity” copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 4. ELDER LAWA lens through which law is viewed including: – Abuse, neglect and self-neglect – Housing needs – Health care decision-making – Estate planning and personal financial decision-making documents: • substitute or supportive • voluntary or court-ordered – Age discrimination – Family law: • later life marriage • divorce • grandparents’ rights – Pension and governmental payments copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 5. Abuse, Neglect and Self-Neglect• Adult Guardianship Act RSBC 1996 Chapter 6• "abuse" means the deliberate mistreatment of an adult that causes the adult – (a) physical, mental or emotional harm, or – (b) damage or loss in respect of the adults financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;• “neglect” means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adults financial affairs, and includes self neglect; copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 6. Self-Nelgect• self-neglect" means any failure of an adult to take care of himself or herself that causes, or is reasonably likely to cause within a short period of time, serious physical or mental harm or substantial damage or loss in respect of the adults financial affairs, and includes: – (a) living in grossly unsanitary conditions, – (b) suffering from an untreated illness, disease or injury, – (c) suffering from malnutrition to such an extent that, without intervention, the adults physical or mental health is likely to be severely impaired, – (d) creating a hazardous situation that will likely cause serious physical harm to the adult or others or cause substantial damage to or loss of property, and – (e) suffering from an illness, disease or injury that results in the adult dealing with his or her financial affairs in a manner that is likely to cause substantial damage or loss in respect of those financial affairs; copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 7. Other Elder Law offences and remedies• Civil remedies based on claims of: – Undue influence – Breach of trust/fraud – Misrepresentation• Criminal Code offences – Assault – Theft – Fraud – Misuse of Power of Attorney/ Breach of trust – Kidnapping/ unlawful confinement copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 8. Housing issues• Home ownership and abuses• Home Support• Assisted Living – competency issues – Subsidized or not• Care homes- – First available bed – Alleged “Bed-blockers” and hospital billing copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 9. Health Care Decision-Making The Continuum of Capacity• Capacity to make your own decisions• Lack of capacity to make your own decisions: 1. Representative by Representation Agreement made voluntarily Or Court-appointed Committee 2. Temporary Substitute Decision-makers: • the adults spouse; • the adults child; • the adults parent; • the adults brother or sister; • the adults grandparent; • the adults grandchild; • anyone else related by birth or adoption to the adult; • a close friend of the adult; • a person immediately related to the adult by marriage. • the Public Guardian and Trustee copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 10. Estate Planning and Personal Financial/Legal Decision-Making• Will(s)• Trusts• Powers of Attorney• Nomination of Committee copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 11. Age Discrimination• Housing• Assumption of Capacity• Employment – Contractual agreement to retire – Constitutional prohibition for age-related retirement copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 12. Family Law• Capacity to marry• Capacity to divorce• Grandparents’ rights• Common law relationships or shared living arrangements copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 13. Pension and governmental payments• Entitlements and knowledge of them• Division of governmental and employment pensions• Subsidies for low income• Effect of death on pensions• Gender biases on pensions copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 14. Elder Law in the context of Estate Planning• Identify the client and avoid professional conflicts• Communicate effectively• Ascertain capacity for the task• Provide holistic advice• Anticipate the worst case and be pro-active for your client’s benefit copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 15. Who is your client ?• Identify for whom you are acting and identify any real or perceived conflicts• “Know your client” and their trusted supporters• Safeguard your client’s privacy and confidentiality – both to assure yourself of their instructions and defensively in case you have to give evidence in the future copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 16. Communication• Set the scene and tone – sight, hearing, illiteracy, seating, speaking and eye contact• Plain language as much as possible• Ask open-ended questions• Slow down – in speaking and awaiting answers• Listen to what the senior says and listen for what the senior does not say• Provide written notes copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 17. Capacity• Presumption of capacity unless legally determined otherwise, ultimately by a court• Capacity is Time and Task Specific• Perceived Incapacity – may have other causes than lack of mental capacity• Confabulation – may mask incapacity• Capacity – a legal test, is based on medical evidence of the person’s cognitive abilities as they relate to the task contemplated copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 18. Holistic advice• Consider the “why” not just “what” the client wants you to do• What is the least complicated but transparent means of accomplishing the desired task• Be realistic, even if your client is not, about: – future family dysfunction – incapacity – death• Anticipate the worst; hope for the best copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 19. Advocate for your Client• Privacy policy may allow abuse to go unreported• Be suspicious of changes in behaviour, the introduction of new professional advisors or the client’s dependence on new “best friends”• Long-term professional and social relationships are the client’s best defence copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net
  • 20. Resources• Public Guardian and Trustee www.trustee.bc.ca• BC Centre for Elder Advocacy & Support www.bcceas.ca• Clicklaw – the Court house Libraries online resource www.clicklaw.bc.ca/solveproblems• Elder Mediation - being introduced www.mediatebc.com• Geriatricians or the local Elder Health Clinic• The respective Provincial Health Authority is a designated authority for reporting under the Adult Guardianship Act• Elder law lawyers copyright 2013 (C) Jane A. G. Purdie, Q.C. jpurdie@telus.net