Elder Care Planning


Written on October 24, 2014 – 6:00 am | by Jasmine Sweatman

A recent Ipsos-Reid report found older Canadians lack confidence in the health-care system’s ability to provide for seniors in the future. With the aging population and strains on the various government systems and agencies for seniors, elder care planning is becoming more crucial.

The shift in the demographics of our society into an aged population will put additional strain on our health care system and our caregivers.

Most individuals as they age will require services or equipment that are not covered by an government programs or subsidies. Planning and saving to pay these expenses while healthy is important and even the best laid plans can go awry as costs escalate unexpectedly.

In Canada Long Term Care Insurance helps pay for the cost of care expenses as people age and is relatively new in Canada. The insurance is now becoming popular, although, depending on the policy, to pay for private home care, medical supplies, institutional care, adaptive devices, physiotherapy, a family member providing care among other things.

Various insurance companies offer these policies and the range of benefits under the policy vary. This type of insurance is something clients may want to consider and something we as estate planners should consider in our discussions with clients.

Until next time,

Jasmine Sweatman/Leigh Sands

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    Elder Abuse – helping to spread the word


    Written on October 23, 2014 – 5:32 am | by Elaine Blades

    I recently had the pleasure of presenting to a group of seniors on the topic of Elder Abuse. The event was organized by the Sunshine Group of Seniors, part of the San Romanoway Revitalization Association. I presented along with Police Constable Amir Butt of 31 Division.

    P.C. Butt explained that there are four different types of elder abuse: physical; psychological or emotional; financial; and, neglect. He explained that neglect comes in three forms: self-neglect; “innocent’ or “non-deliberate” neglect by a caregiver; and, deliberate neglect by a caregiver. My presentation focused on the importance of planning (preparing Wills and Powers of Attorney and ensuring you appoint an honest and trustworthy individual(s) as executor and substitute decision maker) as one important way to help protect yourself from financial – and perhaps other forms of – abuse.  (As was demonstrated later in the morning, what may start as financial abuse, can quickly escalate into a situation of physical abuse and/or neglect).  I concluded by explaining the potential dangers of taking the “joint account shortcut” to estate planning.

    The seniors were a lively and engaged group. The morning began with a welcome song and concluded with a thank you song.

    The highlight of the session was the performance staged by the seniors themselves. They performed two skits which graphically displayed what elder abuse can look like. In my opinion, these skits did as much to illustrate elder abuse issues as the two more formal presentations combined.  The skits brought to life what Police Constable Butt and I were saying.

    Towards the end, four seniors were invited to share a “saying from home” followed by the English translation.  One lovely lady recited a saying which I think will resonate with many readers who deal in “estates” and elder care:

    “The mother can look after 10 children; 10 children can’t look after one mother”.

    Both the skits and these sayings helped raise awareness of this important issue and I’d like to commend the Sunshine Group for their efforts. 

    Finally, I’d be remiss not to mention the morning’s grande finale:  a  “hot cultural lunch”, featuring Caribbean and South Asian foods. Everything was delicious!

    Thanks for reading.

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      Mandatory Mediation – A Binding Success


      Written on October 22, 2014 – 6:00 am | by Gillian Fournie

      In 1999, a pilot program was implemented in Toronto requiring mandatory mediation for all estates, trusts, and substitute decisions matters.  In 2002, mandatory mediation was expanded to Windsor and Ottawa.  The pilot program was considered a success and mandatory mediation has been enshrined in rule 75.1 of the Rules of Civil Procedure (see the Ministry of the Attorney General’s Fact Sheet on the Mandatory Mediation program). Even in other Ontario jurisdictions where mediation remains voluntary, mediation is increasingly popular for estate matters.

      Mediation provides parties with a chance to reach a settlement faster and more economically than via a lengthy court proceeding.  It also offers parties certainty, control over the outcome, and privacy – where the parties are all capable adults, the court does not need to approve a settlement and the terms may remain private.  However, by definition, mediation involves compromise, even sacrifice, on both sides.  The agreements reached at mediation are binding.  As a result, parties have been known to feel “settlement regret” after the fact.  Some parties go so far as to try to overturn the settlement.  When this happens, the court has imposed a high threshold to cross before it will allow a party to get out of a settlement.

      In the recent case of Rawlins v Rawlins, the Ontario superior court court dealt with a motion to enforce a settlement reached at mediation.  In that case, the deceased had named her two sons, Michael and Robert, as trustees of her estate.  The brothers could not agree as to the administration of the estate, and litigation ensued.  In December of 2011, two years after their mother’s death, the brother attended at mediation in an attempt to resolve the matter.

      The brothers were both represented by counsel at the mediation, and had chosen a well-respected and experienced mediator.  The mediation resulted in a full settlement of the issues and the brothers signed “Minutes of Settlement” (the written agreement setting out the terms of the settlement).  Unfortunately, in the months following the mediation, the settlement began to break down.  Robert changed counsel twice, and his new counsel alleged that he had been coerced into signing the Minutes of Settlement by his former counsel and the mediator.  As a result, Robert argued that the settlement could not be enforced against him.  Because of Robert’s refusal to adhere to the settlement, Michael brought an application seeking to enforce the terms of the settlement.

      The court carefully reviewed the caselaw regarding settlements.  First, the court held that settlements are contracts and subject to the same rules as contracts.  For a valid contract to exist, the parties must (1) have a mutual intention to create a contract and (2) agree on all the essential terms of the contract.  The court could look to the contract itself for evidence of mutual agreement on terms.  In this case, the minutes of settlement were detailed, clear, and comprehensive.  This suggested the parties intended to settle and on agreed terms.

      The court also held that there was no evidence of coercion or duress.  The mediator had all the parties sign a contract before they began which explained that any one of them could end the mediation at any time.  As a result, the court was not persuaded by Robert’s argument that he had “no choice” but to sign the minutes of settlement.  In addition, the court was suspicious as to why it took Robert nine months after the settlement was executed before he claimed coercion and duress.

      Finally, the court held that the principle of finality was important.  Settlements are to be upheld except in exceptional circumstances, such as fraud or mistake.  As a result, the court issued a judgment in accordance of the minutes of settlement, confirming that the terms of the settlement had the full force of law.

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