Law Times

Law Times • OcTOber 23, 2017 Page 9 www.lawtimesnews.com Issues highlighted with long-term care BY DALE SMITH For Law Times T he murders of eight resi- dents in nursing homes in Southwestern On- tario by nurse Elizabeth Wettlaufer has prompted the Ontario government to launch an inquiry into the safety and security of residents in the long- term care homes system. The commission, headed by Justice Eileen Gillese of the Ontario Court of Appeal, was struck Aug. 1 and is intended to look into not only the systemic aspects of what happened that allowed the Wettlaufer mur- ders to happen but also what accountability measures are in place to ensure that the obliga- tions under the Long-Term Care Homes Act are met. Lawyers say there are issues that clients need to be aware of when it comes to placing relatives in care situa- tions. "The abuse that was inf licted by Ms. Wettlaufer is just one in- stance of many different types of abuse that occurs in long- term care homes," says Graham Webb, executive director of the Advocacy Centre for the Elder- ly, a legal clinic for low-income seniors. Because lawyers mostly come into contact with the per- son being given the power of attorney, one suggestion is to find a mechanism that will give information or advice to that attorney regarding their obliga- tions under ss. 32 and 66 of the Substitute Decisions Act, which describe the duties of the attor- ney or guardian of property or personal care. "We think that the attorneys or guardians really need to be alive to the extent of their pow- ers under the Substitute Deci- sions Act," says Webb. Webb says this is especially important for grantors who are either incapable and going into long-term care or considering long-term care as a housing op- tion. Webb says that there are de- tailed requirements in the act about things such as keeping re- cords of decisions, which helps drive better outcomes. Webb adds that attorneys or guardians have the right to receive information under the Personal Health Information Protection Act and Substitute Decisions Act, which can help to keep them involved with things such as care conferences to de- velop a care plan for the person being placed in the facility. "The possibility of abuse of any kind, not just medication abuse or intentional abuse by a caregiver but other kinds of abuse, are something that they really need to be aware of," says Webb. He adds that this could also apply to trusteeships or guard- ianships as well as powers of at- torney, in order for them to be aware of the possibility of abuse in congregate living situations. James Anderson, a lawyer in private practice in Ottawa, says that clients who are request- ing a power of attorney need to sit down with the person being given the powers, in order to un- derstand that they become the advocates for the grantors when it comes to dealing with doctors and staff. Much of that discussion should also involve what "qual- ity of life" means to them. "To you, does that mean hav- ing daily showers or are you OK with every other day?" says An- derson. "Do you have food preferenc- es or dietary issues? Of course, it goes to housing — do you want to stay at home with your fam- ily? With health decisions, if you are critically injured, do you want extraordinary measures to prolong your life?" As the advocate, the attor- ney needs to bear the grantor's wishes in mind rather than their own, especially when it comes to things such as new or invasive treatments. Anderson also has a large number of LGBT clients, who can often find themselves in more vulnerable situations in long-term care scenarios where they can become more isolated or be forced to go back into the closet at a late age because staff or other residents can be hos- tile. While some cities are trying to open LGBT seniors' residenc- es, there are limited spaces. Anderson says this can mean conversations with clients about being clear about their wishes when it comes to avoiding some of these situations. "When I add clauses that are more specific is if they express an interest in staying at home as long as possible, which is really only applicable to people that have enough money that can bring in in-home care or add a chair lift," says Anderson. "In theory, you could add a clause that says that if there's an LGBT home that they would prefer to go there, but that's part of the discussion your client should have with their attorney." Anderson says this can mean coaching your clients to have these difficult conversations, which includes certain hypo- thetical situations to consider. "I think it's really important that the person who makes de- cisions — whether it's the indi- vidual themselves living in the home or a family member under the Health Care Consent Act or an attorney or guardian — re- ally needs to understand the rules about informed consent," says Jan Goddard, partner with Goddard Gamage LLP in To- ronto. She says this is where a lot of problems currently take place, especially when it comes to medications being prescribed without anybody seeking in- formed consent. "What I've observed is that the rules around informed con- sent seem to go out the door as you go in the door of these long- term care homes," says God- dard. "It's really important from the beginning to make it very clear to everyone that you ex- pect the law to be upheld." LT James Anderson says that clients who are requesting a power of attorney need to sit down with the person being given the powers. FOCUS O ne of the issues of increasing concern to parents is having that family wealth conversation. With increasing affluence, the present post-war baby boomer generation is confronting, more than their parents ever needed to, the best way to approach talking with their children about financial matters, including their future inheritance. While we have formal education in core subjects such as mathematics, history and English as part of the standard elementary and secondary curriculum, it seems financial literacy is only beginning to become part of the education system. Yet we know that generally when it comes to learning skills, whether it is a second language, a musical instrument, or downhill skiing, the earlier is generally the better. The teaching of financial skills and financial education however is often delayed until our children are in their late twenties, and is often comprised of, at best, an informal mentoring process based on family discussion and anecdotal tips, rather than a formal, objective, structured approach. "Too little, too late" perhaps best describes the present reality of financial education in most families. In RBC's recent Wealth Transfer Report 2017, key findings include that the key to raising financial literacy and building financial confidence in our children is to start early. Most of those surveyed believe a structured approach is more effective than an unstructured one. A key finding of the Report (which I think many of us would agree with) is that our present societal values include a reticence and lack of comfort in talking about financial matters, inheritance, and death which leads to inaction, and a recurring intergenerational cycle of inadequate financial guidance. This discomfort is ubiquitous throughout the world, although its intensity varies in degree among different cultures. Simply repeating how our parents informally educated us is arguably not sufficient. Life and financial matters are increasingly that much more complex, and without proper financial management skills, our children's financial, emotional, social, and perhaps most importantly, spiritual wellbeing, as well as the wealth they inherit from us, is at risk. The wealth management conversation is slowly inching forward to at least now recognize the importance of an open dialogue on money issues, and to stress the need for greater financial literacy and a more formal approach. I would offer a comparison – many of the present generation of baby boomers learned to drive a car under the instruction of a parent – driver's education was just beginning. But now, few if any of our children learn those skills without a formal education course with a qualified instructor. Another comparator – the 60's brought the sexual revolution and paved the way for antiquated Victorian notions to be cast aside in favour of a liberalization of values and open dialogue on previously taboo subjects. We need an equivalent shift in attitudes to break the mold when it comes to our attitudes towards talking about money matters with our children. Navigating through the complexity of our modern financial world and arriving at the desired destination intact and without serious accident along the route requires now more than ever a different approach and open dialogue. We can all contribute in our individual ways to this evolution, whether as parents or practitioners in promoting that family wealth conversation. Margaret O'Sullivan, O'Sullivan Estate Lawyers LLP That Family Wealth Conversation - Too Little, Too Late? www.osullivanlaw.com Sponsored by Untitled-5 1 2017-10-18 10:54 AM

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