Canadian Lawyer

46 O C T O B E R 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m hen Kavina Nagrani spotted "Legal Capacity, D e c is i on - ma k i ng and Guardianship," a recent report by the Law Commission of Ontario, she was immediately attracted to it. "I consider myself an elder law law- yer, so everything to do with aging and all things to do with elders as they approach the law is what I do," says the Loopstra Nixon LLP associate. "I found the report really reflected what I see in practice from my clients." The report and 58 recommenda- tions, released in March, is the first comprehensive analysis of the prov- ince's legal framework in this area in almost 30 years. After reading it, Nagrani's first thought was "finally, the entire public is starting to scream about all these issues with our aging population and people are paying attention. Now that we have this population, these issues affecting older adults are coming to the forefront." The 2016 census from Statistics Can- ada noted that, for the first time ever, there are now more people over the age of 65 in Canada than under the age of 15. The numbers vary by province, with the Atlantic provinces seeing a sharp decline in the number of people aged 15-64 and a strong increase in those over 65. Robin Aitken, a partner at Cox & Palmer in Charlottetown, says that because Atlantic Canada's population is aging at a faster rate than it is across the rest of the country, "we're going to see these issues more and more. "Our legislation, like Ontario's, is very black or white — it either purports to cover somebody who has capacity or doesn't have capacity — so what we're lacking is that middle ground where someone might have impaired capac- ity," Aitken says. The legislation and likewise the documents "don't really support" the kind of assisted decision- making some elder adults might need, she adds. Charlotte McCurdy, a partner at Tay- lor McCaffrey LLP in Winnipeg, who is the current chairwoman of the Mani- toba Bar Association's wills and estates section, says highlighting issues to the Manitoba Law Reform Commission is something she plans to do. "There are inconsistencies we've been identifying in the last few years and I certainly want to raise the issue on behalf of our section and say look, we as practising wills and estates lawyers have identified all of these problems and the acts haven't been looked at since the '90s — it has to be reviewed," McCurdy says, adding she would like to see a thorough review similar to what Ontario did. L E G A L R E P O RT \ W I L L S , T R U S T S & E S TAT E S W STEVE MUNDAY The realities of aging Wills and estates lawyers are developing practical guidelines to manage Canada's aging population By Mallory Hendry

• Cover