Why Elder Law Matters
By 2036, an estimated 10.4 million Canadians will be 65 years of age or older.
As the population ages, new areas of law, like elder law, are gaining prominence. This year, I have been working as a student caseworker for the Queen’s Elder Law Clinic, the only clinic of its kind in Canada. The clinic’s mandate is to provide “pro bono elder law services to senior citizens in the Kingston community and throughout Eastern Ontario who would not otherwise be able to retain legal counsel.” What follows are some of my reflections from the experience, and why I think elder law is interesting and important.
The Subject Matter
First of all, you might be wondering how to define “elder law.” While I don’t pretend to be an expert, in my experience elder law is less about a specific area of law and more about dealing with the sorts of issues that affect seniors.
Much of the work we do at the Queen’s Elder Law Clinic (QELC) is concerned with end-of-life planning. In particular, we focus on drafting Powers of Attorney and wills. Even if you have no imminent need to start estate planning, or making personal care decisions, it is likely that you have a family member or family friend for whom such decisions are relevant. Learning about writing a will or granting Powers of Attorney is also extremely valuable. According to a 2012 survey by LawPRO, 56 per cent of Canadian adults do not have a signed will and 71 per cent of Canadian adults do not have a signed Power of Attorney.
This is not unique to elder law, but working with older clients makes the need for excellent communication skills especially apparent. End-of-life decisions and estate planning decisions are extremely personal and, as such, clients need to feel comfortable. Especially in the clinic, many of our clients have never met with a lawyer or anyone resembling a lawyer before. As a result, they may feel intimidated by the entire process. A big part of our job is simply shooting the breeze with our clients.
Getting to know your clients isn’t just about making them feel comfortable. A big consideration in any elder law file is whether or not a client has the capacity to draft a will or a Power of Attorney. Capacity isn’t a fixed attribute. Rather, a client can be capable one day, and incapable the next. Therefore, establishing a baseline with your client is incredibly important. It’s also important to recognize that the word “capacity” itself can be a bit of a red flag for some clients. If a client feels like he or she is being tested, it may put a strain on the meeting.
Dealing with older clients can also make you more sensitive to individuals’ unique needs and considerations. For instance, accessibility becomes a concern. You also become more thoughtful about how you use your time in meetings, and how long you choose to make meetings. Sometimes more frequent, shorter meetings may ultimately be more productive than a drawn out meeting in which you try to gather all the information you need to draft a document.
There is no Such Thing as a “Normal” File
If you’ve ever watched any Monty Python, you should know that “nobody expects the Spanish Inquisition!” From my work at the Elder Law Clinic, I have learned to expect the unexpected. If you’re working in elder law, you’re working with people, and people bring with them all sorts of delightful and messy complications. This is why it is doubly important to spend time talking to your client, because he or she may say things in passing that are relevant to the work at hand. Family dynamics are also at play in any elder law file. Many clients are referred by family members, or have family members helping them with their affairs. Generally these individuals are well-meaning, but it is important to establish that there is no undue influence with respect to the documents and that solicitor-client privilege is respected.
It is also essential to take good notes in client meetings. This helps prevent potential liability down the line and ensures that you have a record of what you said and what the client said. These notes are especially valuable in cases where a family member might want to challenge the will. If a client wants to exclude a family member for instance, it is a good idea to make a note of the reasons for the exclusion. This shows that it was not simply an omission. In cases where consent and capacity might be at issue, detailed notes help elucidate the situation at hand.
Elder Law is Evolving
One of the exciting things about elder law is that it represents the way law changes and evolves with society. Law is not a fixed and stagnant thing. As we learn more about the aging process, elder law will develop. One particular area in which we may see changes is the area of consent and capacity as our understanding of conditions like dementia advances. New decisions like Carter also hold implications for elder law. Opening the door to options like physician-assisted suicide could have effects down the line for individuals planning Powers of Attorney.
Elder law is an interesting and dynamic area of the law. Working on elder law files is an excellent way to develop transferable skills, from drafting documents to building client relationships. No matter which area of law becomes your ultimate practice area, knowledge and experience with elder law is a valuable asset.
Julia Zisser (2L) is a Features Editor for Juris Diction.