Allan J Gold

Lawyer

Allan J Gold
(514) 849-1621

Consider the elderly and think about Elder Law!

June 6, 2018                                                     ALLAN GOLD’S BLOG

Gold's Legal Minue


First blog post of series on Elder Law for seniors and their families, particularly spouses, adult children, caregivers, etc.


BLOG ALERT!We interrupt the business series to launch in this space another series, this one on Elder Law, another area of specialization of Attorney Gold.

OPEN LETTER TO READERS FROM A. J. GOLD

You may or may not know that Elder Law is another area of specialization of mine. My starting point is as follows. I believe that we have the country that we have due to the intelligence and effort of our forefathers. And we’re all here because of our parents. Since my parents were born in or about the 1920s, they were part of the so-called “Greatest Generation”, which phrase was coined by Tom Brokaw in his book of the same name. Indeed, he profiled this population segment as those people “who grew up in the United States during the deprivation of the Great Depression, and then went on to fight in World War II, as well as those whose productivity within the war’s home front made a decisive material contribution to the war … (Source: https://www.google.com/search?q=greatest+generation+by+Tom+Brokaw&ie) For me, this applies equally to Canada, the nations of Europe, and many other countries throughout the world. Of course, given their trials and tribulations and much toil, we, their adult children, owe them a debt of gratitude. But we owe them much more. You see as they get older, we become the adults responsible for everyone in the room, both young and old. Our job is to protect them from danger, see that they’re provided the necessities s of life, continually looking out for their good and welfare. This said, I am passionate about the well- being of those routinely called “senior citizens”. I am particularly focused on those who are the most vulnerable and at risk due to old age, disease or infirmity and those in the grips of someone in the family or not, taking advantage, causing pain and suffering thereto. Indeed, we must be vigilant and do our very best for them.

The purpose of this elder law blog series is to raise your consciousness respecting the issues facing people as they age. In addition, I aim to alert you of common mistakes of seniors and their families and several minefields that they often must traverse. And I shall introduce you to some of the legal notions and precepts applicable thereto. My hope is that you will become more informed on the topic. And further, you will not wait, but rather immediately take all the steps in order to better prepare yourself personally and also your aging loved ones.

Truly yours,
A. Gold
Note. A.J. Gold is the author of the following books:

“Elder Law in Canada*ELIC*” It’s a ground breaking (2,500+ page) legal text, , acquired by legal libraries, Bar Associations, and Law Schools. (For testimonials, excerpts etc, please visit www.practitionerspress.com)

 “Estate Document Professor** EDP** (Part of the www.45pluslifehandbook.com* series), informing Canadians everywhere about greater estate preparedness, covering: Last will and testament (will); Power of attorney (POA); Advance medical directive (living will); Trust; Organ donation consent; Estate Inventory and Distribution Survey(For testimonials, excerpts etc, please visit www.practitionerspress.com)

A. TOPIC & PROPOSITION: Consider the elderly and think about Elder Law!

Proposition: On a personal level, it’s tough to get old(-er)- you have certain concerns driven by age. But old(-er) age, on a second-hand – basis (like second smoke) is also tough on others, notably a spouse, adult children, close relatives & friends and this, especially so, if already caregivers. There are many possible problem areas to navigate. In many instances, the law can be the yard stick to measure circumstances. And it’s often the “weapon” of choice to combat injustice suffered upon the elderly. And the thinking is the more you know, the better off, you and your loved ones will be. And in a few words, that’s my take on the “raison d’être” of elder law!   

A.1 QUOTE OF THE DAY
Mohandas Karamchand Gandhi. He was born in India and trained in law at the Inner Temple, London. He first employed nonviolent civil disobedience as an expatriate lawyer in South Africa. One of his famous quotes is: “A nation’s greatness is measured by how it treats its weakest members.” (Source https://www.google.com/search?q=famous+judicial+quotes+on+elderly&client=firefox-b-1&tbm=isch&tbo=u&source=univ&sa=X&ved=0ahUKEwiEnOr-lLrbAhUSKawKHQ9wAXoQ7AkINA&biw=1024&bih=639)
(And yes, he-she really did say that!)  

B. WHY IS THIS IMPORTANT …TO ME?

First, the elderly is unfortunately at risk. Risk factors range from declining health, disease, fixed income, loneliness-lack of socialization, difficulties with mobility, all the way to abuse. And in many cases, the law is intertwined therewith.

Second, you’re not getting any younger; but instead, you’re aging this very minute as I speak. Indeed, if not already there, Gd willing, you’ll eventually get to be elderly. In any event, at the present time, it’s probable that you have relatives who are already there.

Third, just like everything else, it’s always best to “Do it Now!” But if still somewhat in the future, there’s no time like the present to become informed and make ready for anything and everything. Indeed, that’s the better way taken by people with the smarts, just like you.   

C. ARGUMENT: FACTS, FIGURES, LEGALITIES & COMMENTARY

Facts. “The world is aging so fast that most countries are not prepared to support their swelling numbers of elderly people, according to a global study being issued Tuesday by the United Nations and an elder rights group….The study reflects what advocates for the old have been warning, with increasing urgency, for years: Countries are simply not working quickly enough to cope with a population greying faster than ever before. By the year 2050, for the first time in history, seniors older than 60 will outnumber children younger than 15….”(Source: https://www.theglobeandmail.com/life/health-and-fitness/health/canada-ranks-fifth-in-well-being-of-elders-study/article14621721/)

Figures. Here’s a statistical snapshot of the people of Canada. “From 1996, the total population grew from 31,612,897 in 1996 to 35,151,728 in 2016. The percentage increase was 11.2 %. When it comes to an age scale, here is the breakdown as of 2016:

  • 0 to 17 years – 1 9.3%
  • 18 to 24 years – 9.2%
  • 25 to 44 years – 27.1%
  • 45 to 64 years – 27.8%
  • 65 years and older – 16.5%
  • 90 years and older – 0.8%”

(Source: https://www150.statcan.gc.ca/n1/pub/12-581-x/2017000/pop-eng.htm)2.
Now let us crunch the numbers and break down the figures. This means that the 65+ segment amounts to 5,800,035 while 90+ segment amounts to 249,213,824. Indeed, this is a huge swath of people!

Legalities. When I say that I also practice in the area of civil-elder law, many people are uncertain and ask: “What’s that? What does it represent?” Here’s my answer.

As per U.S. Legal, elder law is defined as: “a specialized area of legal practice, covering estate planning, wills, trusts, arrangements for care, social security and retirement benefits, protection against elder abuse (physical, emotional and financial), and other involving older people.” (Source: https://definitions.uslegal.com/e/elder-law/) However, I find this definition to be lacking respecting aging and too restrictive over coverage.

I would start my explanation with the aging process. While I’m sure that you know what it means to age, in the interest of clarity, I shall provide you a definition. “Old age refers to ages nearing or surpassing the life expectancy of human beings, and is thus the end of the human life cycle. Terms and euphemisms include old people (worldwide usage), seniors (American usage), senior citizens (British and American usages), older adults (in the social sciences[1]), the elderly, and elders (in many cultures—including the cultures of aboriginal people). (Source; https://en.wikipedia.org/wiki/Old_age) To this, I would add the distinction between junior seniors, (i.e., those just surpassing the threshold of middle age) and senior-seniors, (i.e., those. well down the road of life, much closer to the end than the beginning).

When it comes to the law, I would say that by virtue of the constitution in Canada, every citizen has rights and freedoms. And by virtue of the “Chartre des droits et libertés de la personne du Québec”, every citizen has rights. While the law applies equally to everyone, young and old, elder law is the field dealing with people entering or far into their golden years.

Next as to the subject areas covered, I say that it is as large as the concerns of seniors, older adults and the elderly and the major issues perplexing them. For me, there are four main categories (corresponding to my text, “Elder Law in Canada*ELIC*”), which are:

  • Medical Module. It has two main streams, (a) Medical, which in turn comprises sections on such topics as: (i). Consent; (ii). Euthanasia; (iii). Physician- assisted suicide; (iv). Continuation/stoppage of life support; (v). Hospice; etc.; and (b) Mental Health, which in turn comprises sections on such topics as: (i). Declining mental function; (ii). Dementia; (iii). Legal incapacity (inaptitude); (iv). Guardianship; etc.
  • Work Module, It has two main streams: (a) 50+ Worker, which in turn comprises sections on such topics as: (i). Employment; (ii). Termination/dismissal; (iii). Unemployed status; (iv). Age bias/discrimination; (v). Forced retirement; (vi). Pros and cons of retiring a worker; (vii). Ins & outs of early retirement decision; etc. and (b) 50+ Entrepreneur, which discusses the challenges and process of someone 50+ who is about to become self-employed and launch a business following his or her taking an early retirement. In addition, it describes in great depth the situation of an entrepreneur, 50+, having built a successful family business or a great corporation, but who is now faced with the prospect of devolution and/or transfer to the next generation. It profiles the people involved, the forces and feelings in play, possible problems and the make-up and skill-sets of the successor.
  • Pension-Retirement Module. It has two main streams: (a) Pension system in Canada, detailing such areas as (i). OAS/GIS; (ii). CPP-QPP; (iii). Private/company pensions; (iv). RRSPs; etc. and (b) Planning retirement & Estate. This is for someone addressing retirement (in a non-monetary sense) and estate planning; and contemplating pre-death documents, such as a (i). Will; (ii). Power of attorney; (iii). Living will/mandate; (iv). Trust; (v). Organ donation (consent) writing; etc.
  • Life Module.(future volume) It will have four main streams: (a) Housing; (b) Personal care; (c) Elder abuse; (d) Miscellaneous such as driving a car, etc.

Commentary. So you see, for me, elder law has more depth and is nuanced respecting aging and is much more expansive when it comes to the areas covered.

 

D. TIPS & RECOMMENDATIONS

Everyone should take the time to consider the situation of an elderly person. And we all should think about elder law – it’s truly something to take to heart! Here are my ten “Golden” Rules.

1. BE aware of the existence of elder law and its place in the grand scheme of all things legal. And BECOME informed of the principles thereof – indeed, one can derive guidance therefrom.

2. SEARCH for resources relative to seniors, both people & organizations on one part and printed materials on the other. To this end, (a) VISIT your local library and read extensively on the subject; (b) RESEARCH on line & learn some more; (c) CONTACT the appropriate government departments/agencies and community organizations, charities, etc., for help and information; etc.

3. ENSURE that the subject senior citizen has proper housing and adequate food;.

4. BE cautious and defensive when it comes to the safety and security of the subject senior. There are many reports in the media of conmen victimizing pensioners. Thefts and home invasions targeting the elderly are also quite common. In this regard, (a) TAKE precautions, such as having proper locks installed, securing a bracelet medallion with key medical information and a panic button for emergencies, etc.; & (b) MONITOR finances;

5. BE observant, paying close attention to changes in demeanor and condition of the subject relative who is elderly.

6. BE afraid of delays, particularly when it comes to health status and treatment of the subject senior family member. Of course, the one thing that the elderly don’t have much of, is time.

7. ADD personal care in varying degrees as needed. To this end, (a) TAP the public system for what is offered and ENSURE that care workers privately employed are qualified, competent, attentive and also with a kind character; (b) SHIFT the individual to a care residence when living independently is impossible. (N.B. Once the signs are there that a relative cannot manage on his-her own, DON’T delay in registering him-her on a waiting list for a facility.)

8. TRUST your instincts. If something doesn’t look right, DON’T deny what is staring you in the face. Never ASSUME the best. REMEMBER, if it looks like a duck, walks like a duck, quacks, like a duck, it’s probably a duck!

9. ASK questions …lots of them. DON’T be accepting of answers without considering the possibility that the person responding, either does not have personal knowledge of something, is lying or is covering up. And never TAKE a statement on face value- instead, CHECK everything out thoroughly. It’s that important!

10. KNOW that the welfare of the elderly is not only the job of family- it bears upon all of us. To be human, walking the right path, we must never be onlookers, not getting involved. Instead, we must intervene for seniors and protect them.

E. CLOSING –LEGAL MATTERS!

In closing, I wish to make the point that the word, “elder” in the context of aboriginal peoples, has an added and lovely nuance. You see, “An Aboriginal Elder is someone who has gained recognition as a custodian of knowledge and lore, and who has permission to disclose knowledge and beliefs. In some instances Aboriginal people above a certain age will refer to themselves as Elders…. Elders are very important members of First Nation, Métis, and Inuit communities. The term Elder refers to someone who has attained a high degree of understanding of First Nation, Métis, or Inuit history, traditional teachings, ceremonies, and healing practices. “ (Source: https://www.google.com/search?client=firefox-b&ei=rjEYW_7PA6jejwSK76WgCQ&q=first+nation+elder+definition&oq=elders+definition+aboriginal+people&gs_l=psy-ab.1.3.0i71k1l8.0.0.0.37226.0.0.0.0.0.0.0.0..0.0….0…1c..64.psy-ab..0.0.0….0._-Qg–NuKLE)

Accordingly, I submit that all of us in the broader society need to learn from our aboriginal brothers and sisters, who hold elders in high esteem and elevate them to a position of importance. Continuing with this thinking, I urge that we need to show respect for and honor old(-er) people. It’s not just out of a desire for them to impart their knowledge and wisdom to the next generation. But more, simply put, it’s just the right thing to do!

Furthermore, I assert that we must always act in the best interest of old(-er) people, aspiring that they have a better quality of life. Of course, this means that we must keep them safe and secure ensuring that they have the necessities of life. But this also requires everyone to be cognizant of legal rights and recourses. Indeed, legal matters! And knowledge thereof is power! This is especially true when the subject person is of a certain age – of course, it’s important to be informed when making a decision at the best and worst times of one’s life. (And yes, that’s something to remember & think about.)

F. SENIOR LITE SPOT: There’s absolutely nothing funny about getting old, except…

  • Maybe it’s true that life begins at fifty. But everything else starts to wear out, fall out, or spread out.
  • Q: How can you avoid that terrible curse of the elderly wrinkles? A: Take off your glasses.
  • “When you are dissatisfied and would like to go back to youth, think of Algebra.” Will Rogers

(And yes, you really have to be a certain age to appreciate this.)   

G. PREVIEW OF NEXT IN THE BLOG SERIES: Pensions

Do you think about your retirement? Do you stress over your pension, be it to be government, company, etc.? Or are you concerned about the revenue of an elderly loved one. If so, you’re in luck. Next week, I will write a bog post on retirement income. Interested? See you next time.*   

H. NOTICE – CAUTION -DISCLAIMER

The material provided herein is of a general nature, strictly for informational purposes. The interpretation and analysis is not to be misapplied to a personal situation with a particular set of facts. Under no circumstances, are the herein suggestions and tips, intended to bring a reader to the point of acting or not acting, but instead, the hope is that they are to be a cause for pause and reflection. It is specifically declared that this content is not to be a replacement of or substitution for legal or any other appropriate advice. To the contrary, for more information on these presents, related subjects or any other questions, it is the express recommendation of the author that everyone seek out and consult a qualified professional or competent adviser.   

* ©/TM 2015, 2016, 2017, 2018 Allan Gold, Practitioners’ Press Inc. – ALL RIGHTS RESERVED