Canadian Lawyer

44 O C T O B E R 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m law, because there are gaps in the law," she says. "The law we have right now pertain- ing to consent capacity in health care and treatment decisions is very new," Fallow adds, citing Ontario's Substitute Decisions Act and Health Care Consent Act. "But despite being very new reform is on the table." The Ontario Law Reform Commis- sion has undertaken a review of this litigation, taking into account its frame- work for the law as it affects older adults and people with disabilities. Substitute decision-makers don't have enough guidance, Fallow warns, adding that courts are treating capacity as a binary issue (either the client has the capacity to make decisions or they don't). They typically rely entirely on the person who is given power of attor- ney, rather than speaking to the person who originally granted those powers. She asserts that the capacity issue is more nuanced than that. "Capacity is not an on-off switch," says Martha Jane Lewis, executive direc- tor of the BC Centre for Elder Advocacy and Support, arguing that it can depend on the time of day and even on the length of a trip to a solicitor's office. "It's an awareness about the capacity of your client at any given time." Capacity issues even feed into crim- inal law, says Jan Goddard, partner at Goddard Gamage Stephens LLP, who specializes in elder law. Clients with dementia can sometimes become aggressive, but the law must consider such aggression carefully in the context of domestic abuse. "You have someone who is engaging in assaultive behaviour, but they have dementia, so they don't have the capacity to form the intent," she says. Moreover, the legal question of how to accommodate those clients is complex. Hospitals aren't a suitable venue in many cases, and correc- tions facilities seem inappropriate. "How do you care for those people?" Accessibility issues Health-care issues for older people are extending into areas other than capac- ity. Accessibility is a big emerging issue, says Judith Wahl, executive director at the Advocacy Centre for the Elderly, a specialty legal clinic for the elderly in Toronto, which she founded in 1984. She believes that it will grow in importance as the number of older people increases. "I think all hospitals in Ontario have illegal discharge policies," she says. Wahl sees hospitals with a grow- ing number of older patients waiting for long-term care beds and a public home-care system that can't cope. Con- sequently, she believes that the hospitals discharge patients and leave them to buy long-term care or send them to retirement homes that won't pay for it. "If you're a low-income senior on a fixed income, you don't have that money. The hospital can't abandon that person," she says. Elder law goes far beyond accommo- dating the sick and infirm, says God- dard. Even the process of normal aging can bring up issues in other areas of law, she says, giving employment law as an example. L E G A L R E P O RT \ E L D E R L AW A DAILY BLOG OF CANADIAN LEGAL NEWS LEGALFEEDS.CA FEEDS LEGAL POWERED BY Untitled-1 1 2016-09-15 9:30 AM

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