Law Times

Law times • OctOber 26, 2009 FOCUS Lawyers ponder changes to laws dealing with the elderly as population ages Who watches the watchers? BY I. JOHN HARVEY For Law Times n aging population with growing nest eggs has raised the stakes for bat- tling siblings and attracted pred- ators eager to exploit the elderly. In the meantime, current legislation seems to be ill pre- pared to deal with the emerg- ing trend. It's an issue jurisdictions A around the world are wrestling with, including here in Ontario where the province last passed key legislation, Th e Substitute Deci- sions Act, in 1992 along with related provisions in the Health Care Consent Act in 1996. But, as Kimberly Whaley, chairwoman of an Ontario Bar Association working group on trusts and estates, notes, the 1992 law was drafted with no anticipation of how things would transpire some 15 years later. Th e group has already made a submission to the Law Com- mission of Ontario. It's exam- ining a range of issues around elder law and policies and is in the stages of sifting through presentations and discussions around how to frame legisla- tion that protects the elderly and ensures their rights aren't trampled by well meaning but heavy-handed do-gooders. "We are concerned not only that our current legisla- tive framework is inadequate but also that the processes and in the implementation of the laws, and both the laws and procedures [themselves], are misapplied," the OBA submis- sion said. "A prime example is the Substitute Decisions Act (SDA), which is intended to protect the vulnerable. How- ever, it makes the appointment of substitute decision-makers and creation of powers of at- torney an unsupervised pro- cess, while making the scrutiny of appointments and the abu- sive acts of these substitute de- cision-makers complex, slow, and expensive. As a result, powers of attorney are vulner- able to misuse and abuse, and justice delayed in the curtail- ing of abuse of these powers is almost certainly justice denied. Th ese breaches of the spirit and intent of the law involve fun- damental Charter rights." While the group isn't calling for wholesale changes, lawyers working in the sector say the issues arising from the demo- graphic developments need more attention and monitor- ing. Th at's because with some $1 trillion in inheritances al- ready changing hands or ex- pected to continue to change hands in the next 15 years, the stakes are sky-high. "Th ere's a high expectation among boomers around their affl uent parents' wealth," notes Jan Goddard, formerly with the public trustee's offi ce and now in boutique practice for herself at Jan Goddard and Associates. She is also chairwoman of the OBA trusts and estates section executive's capacity law work- ing group. As Goddard points out, emotions can run high in fami- lies in confl ict. "In this sector, we only see the worst of the worst, of course," she says. "We don't see the hap- py families who have worked it all out. In some ways, it's worse than family law because there you may be dealing with a couple who have been intimate for 15 or 20 years. Here, you're dealing with siblings who have a lifetime of confl ict." As Whaley points out, the 1992 law tends to be an all-or- nothing tool that's being called into play more often for pur- poses that were never intended. It's an issue that bears watch- ing because Canadians are liv- ing longer, including a growing group of people who are reach- ing their 80s, she adds. Th e 1992 law often doesn't work because it has become a last resort when all other channels have failed, Whaley says. For example, who watches the watchers? Th at's one of the key questions that has al- ready surfaced. "Once a guardian is ap- pointed, at some point they're supposed to pass their ac- counts," says Goddard. "But there's no mechanism to en- sure that's actually done." Who cares for the elderly person in question, how that care is delivered, whether fam- ily members become the care- giver, whether they should be paid for their time from the estate, and the management of the estate assets themselves are all questions that would tax even the most collaborative and loving family. Add in sibling rivalry and jealousy, and things change dramatically. with at a less formal level, at a tribunal or through dispute resolution. Indeed, says Goddard, the While Ontario's Substitute Decisions Act was once considered cutting edge, the game has changed, says Jan Goddard. and What Whaley, Goddard, their colleagues at the OBA want to consider is how other jurisdictions handle is- sues that would be better dealt Substitute Decisions Act was written in the late 1980s and not actually passed into law until 1992. At the time, she says, Ontario was on the cut- ting edge of such legislation. But since then, the game has changed. Still, it's not a situation unique to Ontario, she says, noting she's attended confer- ences over the last year or so where those in the elder care and legal fi elds have gathered to swap notes and learn from each other. "Because we're living lon- ger, we're dealing more with brain diseases, with loss of in- tellectual function, and in the context of families we're seeing all kinds of disputes that didn't arise when the legislation was passed," Whaley says. 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