Articles

While Artificial intelligence (AI) has increased productivity and innovation, it has amplified the challenges in the elder law landscape. Seniors have become the target of scams and other crimes involving AI. Older Canadians are particularly susceptible to these fraud schemes as AI becomes more sophisticated. For elder law practitioners, understanding how AI is reshaping financial abuse, undue influence, and fraud is essential, not only for litigation and estate disputes, but also for planning and client education. 

The concept of a “substitute decision-maker” is deceptively simple but legally complex. While the role is often conflated with informal caregiving or family decision-making, in law it carries significant fiduciary duties and procedural consequences. Matters are further complicated by inconsistent terminology: the Substitute Decisions Act, the Family Law Rules, and the Rules of Civil Procedure each frame incapacity and representation in slightly different ways. For practitioners, this patchwork can create pitfalls when advising clients, drafting materials, or litigating issues involving incapable parties.

In litigation involving parties who are incapable, or where their capacity is in issue, it is important to ensure that the rights of such vulnerable parties are protected, and their wishes and dignity upheld. Litigation guardians and section 3 counsel under the Substitute Decisions Act, 1992 both serve similar purposes in this regard, but with different roles. In this article, Rebecca Kennedy discusses the differences in what each role requires or allows, and when the appointment of section 3 counsel or a litigation may be appropriate.

This article examines the introduction of a collaborative practice to elder law as a form of dispute resolution that prioritizes the autonomy, rights, self-worth and dignity of seniors.

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.

Technology is enhancing legal services available to elderly clients. This article illustrates that the role of technology for elderly clients is not about reinventing the wheel. It is about recognizing the unique needs of elderly clients and utilizing relevant tools and platforms to provide them with more accessible and curated legal services.

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 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.

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.

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.

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.

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.

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.