Elder abuse is remarkably easy to hide in Canada.
Friends, neighbours and caregivers have no way of finding out whether a vulnerable senior is being hurt, humiliated or fleeced by greedy relatives. Nursing home workers dare not violate the privacy of their clients. The laws protecting people incapable of taking care of themselves or managing their finances — the Substitute Decisions Act and the Health Care Consent Act — are riddled with loopholes. No one monitors the competence or probity of those handling the affairs of people with dementia or other mental impairments. Most families don’t want to talk — or think about — elder abuse.
For years, advocates for the elderly have called for reform. But policy-makers didn’t want to touch the divisive, morally fraught issue. Academics shrank from the challenge of designing a better system. Lawyers and police were content to apply the existing statutes.
Finally, a public agency has drafted a plan to modernize Ontario’s eldercare laws, speed up the resolution of family disputes over the finances of incapacitated seniors and equip surrogates to take fiduciary responsibility for a parent, sibling or spouse.
The Law Commission of Ontario, which advises the provincial government, released its interim report this month. “The majority (of substitute decision-makers) are doing their best to do the right thing,” said Lauren Bates, the senior lawyer in charge of the project. “But there have to be more checks and balances in the system than there are now.”
The agency recommends four principal changes:
1.) Move disputes over the assets of a person deemed incapable of grasping the consequences of a decision out of the courts, where they can take months — sometimes years — to resolve. They can be adjudicated more quickly and constructively by a specialized tribunal such as Ontario’s Consent and Capacity Board, made up of lawyers, psychiatrists and members of the public. It deals exclusively with questions of mental capacity, consent and substitute decision-making.
2.) Create province-wide guidelines to be applied when assessing a person’s legal competence. Medical professionals currently make these judgments without clear standards, tests to apply or procedures to follow. Their age, exposure to geriatric patients, biases and knowledge of the law assumptions about the elderly affect their evaluations. They may end up depriving individuals with neurological or cognitive impairments of their autonomy or being too lenient with older patients who cannot take care of themselves.
3.) Ensure that those who are appointed substitute decision-makers by parents or struggling elders understand what the role entails, what their financial responsibilities and legal obligations are and how much information to share with immediate family members, other relatives, concerned friends, church members and longtime neighbours. Many disputes could be pre-empted — or resolved in a less adversarial manner — if people had a bit of training and access to information written in everyday language. Much misery could be averted if people who cared knew who was in charge and how the system worked.
4.) Create more options so seniors in declining mental health would not have to surrender total control over their assets and personal care. Trained volunteers could help people make decisions rather than doing it for them. Community organizations could offer limited trusteeship services. Professional fiduciaries could provide assistance as required.
Even with better laws and safeguards, some surrogates will continue to take advantage of vulnerable seniors. Some will empty the bank accounts and sell off the assets of parents, grandparents or guardians who trusted them. Some will abuse, intimidate and shame adults in failing health. It will remain a challenge to identify them and protect the individuals under their care.
But that doesn’t obviate the need to modernize a confusing, hard to navigate, inequitably applied area of law. Nor does it give policy-makers an excuse to dawdle. An estimated 200,000 Ontario seniors have some form of dementia (Alzheimer’s disease is the most prevalent). That number is expected to double within the next 15 years.
Judging by its interim report, the Law Commission of Ontario has drafted a principled, forward looking road map. It balances the rights of elderly and the need for proxy decision-makers. It squarely faces societal issues such as ageism, the limits of privacy, family breakdown and sibling rivalry as well as widespread ignorance about the elder law and lack of training for newly appointed powers of attorney. Some of its recommendations are courageous. Some are imaginative. All are overdue.
Bates and her associates will hold one last round of public consultations until March 4, then write the final version of the report to be presented to Attorney General Madeleine Meilleur by year-end.
It has taken the Law Commission three years to reach this point. It is now in the final stretch.
Ontarians with aging parents or concerns about what will happens if they lose their faculties owe the agency a debt of gratitude. It took on a thankless job no one else was willing to do and brought reason and compassion to the task.