Elder law is gaining attention as a quickly emerging area of practice. Rather than being a new area of law, elder law reflects changes that have been happening in society for several decades. People are now living much longer lives than ever before in history and the numbers of individuals aged 80 or older, and even centenarians, are becoming significant. Between 2006 and 2011, the number of Canadian seniors, defined as those aged 65 and over, had increased 14 per cent to approximately 5 million. In certain Canadian communities, seniors account for one of every five individuals, with this proportion expected to increase with time as a result of lengthening life expectancies.
Given the increasing numbers of aging Canadians and the vulnerability that is often associated with old age, the field of elder law is gaining momentum. The aging population brings with it specific types of legal issues. These are not issues that did not exist until now, but are familiar issues that are now emerging with greater frequency than in the past. As the elder law issues encountered by lawyers become more numerous and complicated, the aging population will benefit from counsel who have experience dealing with such age-related matters.
Elder law recognizes the aging population as a distinct group with specific needs. While they may be similarly vulnerable, seniors are not children. Even when there are family members who are able and willing to assist in providing care, older individuals may not necessarily be well connected to their family. Regardless of the specific subject matter, elder law is about protecting the rights of the elderly to live with dignity.
The Elder Law Clinic at Queen's University is the first law school elder law clinic of its kind in Canada. Clients at the Elder Law Clinic can obtain assistance with estate planning, incapacity planning, and a multitude of other age-related issues, including age-based discrimination and access to healthcare, from law students who are closely supervised by review counsel. The Advocacy Centre for the Elderly provides many of the same services to those living in the Greater Toronto Area, but does not assist in the preparation of wills or powers of attorney.
Lawyers who do estate litigation should be sensitive to elder law issues, which extend into both the practices of estates and elder law. Although emotions may be prevalent, estate litigation is most often driven by money. The exploitation of vulnerable people is no more or less important when committed against an older person of limited economic means, but it may be less likely to come to the forefront within the context of estate litigation. Everyone has the right to independence and dignity, regardless of their age. Where elder law issues exist but the size of the estate is limited, issues may exist that can come to forefront within the sphere of elder law. Elder law clinics allow individuals of limited means to seek assistance in maintaining dignity as they age.
Many elder law issues involve the abuse of powers of attorney. Powers of attorney are tools that can assist individuals of all ages in maintaining some degree of control over their care and finances when they no longer possess the mental capacity to make such decisions themselves.
A power of attorney for property gives someone else the authority to deal with one's assets. Without limitation, the effect of granting a power of attorney for property can be comparable to giving a blank cheque to an attorney for property. A power of attorney for personal care similarly releases control to a designated individual with respect to personal care decision-making, including healthcare decisions made at a hospital or decisions with respect to where one lives. With both types of powers of attorney, there is potential for the authority provided by the document to be misused to take advantage of a vulnerable older person who no longer possesses the relevant mental capacity.
In the context of Canada's aging population, the field of elder law continues to grow. Planning tools, such as powers of attorney and the services provided by elder law clinics, can assist in allowing individuals to age with dignity.
*Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.