Celebrating the 10th
Anniversary of The Elder Law Clinic
The Elder Law Clinic, a pro bono mobile legal clinic and division of the National Institute of Law, Policy and Aging, opened on May 1, 2007 as a service to older adults of Québec, regardless of their economic status, to address legal issues of aging.
The clinic would provide specialized legal services to older persons and to those playing important roles in the lives of older adults. It would also be a pilot project and the source of needed empirical research defining the types of problems and issues faced by older adults across socio-economic and cultural lines and proposals as to how best to address these issues and problems under the law and in practice. The results have been impressive.
Those with physical and mental challenges, those with significant assets, those who were abused or exploited and those who were unbefriended and socially isolated were at heightened risk of loss of their civil rights and autonomy, often prematurely and unjustifiably, when other recourses and preventative actions were an option but unattainable.
Whether rich and poor, rights enforcement and appropriate dispute resolution mechanisms, were inaccessible to many. They were without access to justice for a multitude of reasons notably due to a lack of financial means, or control of their finances, and without knowledge of their rights. They wanted cost-effective, simple, human solutions to problems frequently involving family and were unaware that they had legal rights which might be advocated and defended, which would include and make their involvement and values central to the process, regardless of diminished capacity or vulnerability, in determining solutions and protections which would be the least restrictive of their civil rights.
Indeed, data from … the project comprising this study suggest that the disinclination of (older adults and other marginalized groups) to use the court emanates from either of two central reasons: (i) they do not recognize their most pressing problems as being legal problems; or (ii) their most pressing problems are not recognized as legal problems by the court. In addition, the evidence suggests that the group members’ conceptions of justice and of appropriate remedies for achieving justice differ considerably from those of most judges and lawyers .
Seana C. McGuire et Roderick A. MacDonald, “Small Claims Court Cant”, (1997) 34(3) Osgoode Hall Law Journal 509 à 550.
There are great needs facing our rapidly growing older population and we are proud to have been part of this evolution. We have served clients throughout Québec from Sept-Iles to Stanstead and from Gaspé to Gatineau; have provided, on average, monthly educational sessions to the general public; education to clinical interns from the Faculties of Law McGill and Université de Montréal, the McGill School of Social Work and their family medicine residents; have collaborated on research with the Université de Sherbrooke’s department of gerontology and contributed to the Université de Laval ‘s study on financial exploitation and elder mistreatment; have advocated on law and policy reforms before provincial and federal governments and law societies, provincially and nationally, on issues of end of life, abuse and exploitation, regulation of care facilities and privacy and personal information issues; have provided consultations and professional training to multidisciplinary professionals in the field of aging, from social workers, to doctors, accountants, bankers and the financial sector in general, the police, lawyers notaries, to, and in collaboration with, the Equipe pour contrer la maltraitance envers les personnes aînées du Centre affilié universitaire en gérontologie sociale du CIUSSS du Centre-Ouest-de-l’Île-de-Montréal; have handled regular client referrals from the Ligne Aide Abus Aînés ( the provincial abuse hotline), community abuse organizations throughout the province, various CLSCs and their CISSS, community organizations serving seniors, The Public Curator of Québec, Pro Bono Québec and Centres de Justice du Québec.
The clinic provides holistic, multidisciplinary and case management services to older clients employing emerging and innovative practice methods based on the approaches of participatory justice, from accompaniment, facilitation, conciliation to legal representation before the courts. We receive more then 350 calls annually for legal information and representation in the often complex and always multifaceted cases of older adults. These included abuse, exploitation, capacity and legal representation, amongst other issues of aging, often occurring together and which require multidisciplinary inquiry, problem solving, follow-up and support. With the help of our many professional volunteers and our students we currently provide full legal representation in approximately 50 of such cases annually. We seek to resolve cases in efficient, tailored and human ways safeguarding autonomy and preserving and repairing family relationships, whenever possible, thereby, avoiding altogether, or resolving more efficiently, contested legal proceedings. In addition institutionalization and formal legal representation are often reduced, revised or avoided in many of our cases resulting in significant cost savings and recovery of time to ministries of the province and their professionals and most importantly, enhancing each client’s dignity, security, autonomy and ultimate quality of life.
The issues of capacity assessment, decision-making and legal representation currently affect thousands of older adults in Québec and these issues are intimately associated with, and give rise to, many forms and incidences of elder abuse and exploitation, both individual and systemic. Our desire is for law and practice to be ever more effective, responsive and accessible, throughout the continuum of professional intervention. While the issues of aging are too numerous to set forth here and we invite you to visit our revised and updated website at www. ElderLawCanada.ca. the most pressing issues we will continue to address and develop in the coming years together with our colleagues in all fields of aging, locally, nationally and internationally, are:
- the reduction and elimination of mistreatment and exploitation of vulnerable older and disabled persons;
- improved access to justice, by expanding access to independent and expert advice to all whenever civil rights are at stake, regardless of level of capacity;
- improved clarification of standards for capacity assessment which take account of legal obligations to safeguard autonomy, to promote the least restrictive measures of protection and, subject to the legal principle of the presumption of capacity, to maximize and promote residual capacity;
- development and extension of autonomy enhancing, supported decision-making practices (Article 257 CCQ);
- strengthening requirements for considering the least restrictive alternatives to formal representation and loss of civil rights amongst all professionals in the continuum of intervention in cases of elder abuse and/or incapacity, such as requesting further expert evaluations/observations to be carried out in environments and at times which will maximize the individual’s capacities and functionality;
- creation of more options for those who need support and assistance, including professional and community supports, to make decisions to administer their finances independently, without loss of civil rights;
- expansion and strengthening of access to rights enforcement and dispute resolution mechanisms;
- expansion of the use of alternative dispute resolution and participatory justice approaches;
- advocacy of a specialized court or division of the court concerned with ‘droits de la personne’ with the role of providing holistic and adapted approaches to resolution and reduction of disputes in traditionally non-contentious matters and less egregious cases of abuse and exploitation involving family (proches parents), in collaboration with the Human Rights Commission;
- improvement of community and professional supports for individuals, families, professionals, institutions;
- reduction of misuse and abuse of powers of attorney and mandates of protection through enhanced counseling, drafting, education of mandators and mandataries, transparency, accounting and independent oversight;
- improvement of oversight and monitoring of legal representatives under powers of attorney and mandates of protection;
- reform of the law regarding mandates of protection and development of legal documents which are less impactful on civil rights and more responsive to the needs and values of mandators;
- reform of practice to better define, limit, tailor and render more flexible and respectful private and public regimes of tutorship at the time of judgment and in on-going practice;
- promotion of multiple information sessions/documentation for legal representatives by notaries, lawyers, greffiers, judges and the Public Curator, throughout the continuum of intervention, as to legal and ethical duties and obligations owed under all regimes of protection, conventional and legal.