Student Reflections

“This past summer has been an incredibly enriching experience. Not only was I able to learn so much from you about the field of elder law, but I was able to have a firsthand look at real cases. Meeting and getting to know many of these clients truly brought the issues to life for me. I’ve composed a list here of some of the most valuable lessons that I’ve learned during my time at The Elder Law Clinic. Thank you for being a wonderful teacher and more importantly, an incredibly inspiring person.

1- The human approach

One of the first things I learned at the clinic was that we would not be taking a typical approach to lawyering. The nature of the cases was such that had we done so, this would inevitably have created more problems than it would solve. We dealt with families that were often is the middle of a real and significant crisis. Many of whom were elderly clients who had been exploited and were feeling vulnerable. Instead of arriving on the scene and sending off lawyer’s letters and bringing matters to court, we focused on trying to resolve the issue with a more human approach. That is, through mediation or conciliation. To me, this was not only more effective, but more natural considering the sensitive nature of many of the issues. It was incredible to see firsthand how much can be resolved without threats or proceedings, but simply through discussion and transparent communication among all involved. Often, all the parties are actually after the same thing, typically the safety and security of our aging client, but they disagree on the best method to achieve it. This can sometimes be resolved more amicably by surrounding the individual with a multi-disciplinary team that can support them and work together to reach an outcome that everyone can agree with. Court proceedings are often a drain on the client’s already limited financial resources and the only one profiting is the lawyer.

Another dimension to this approach was the notion of a mobile clinic. Clients did not come to the clinic office for meetings. We went to them. I found this particularly useful because we were able to get to meet and see our clients in their own environment. We could witness firsthand their physical mobility, living conditions, and overall disposition in their environment such as how they interacted with their peers. All of this information was often extremely helpful in taking a more global approach to the situation, and of course, allowed us to get to know our clients on a more human level.

2- Importance of informing and empowering seniors

Many of the older clients I encountered were misinformed about their rights. For instance, they did not realize that they could revoke a mandate. Others did not know that they had the right to refuse care or even the right to request a re-evaluation of their competency under different circumstances. I quickly saw that often simply providing basic legal information was empowering for them. It allowed for them to see that they still had a voice that could be heard and with our advice, were able to slowly start to regain control of their lives. At the clinic, I was able to attend a public conference on wills and mandates. These public legal education conferences were a perfect example of how getting this information out to the older population before they encounter any legal problems, is so critical. Pre-empting the risk of abuse is extremely important in this domain. We sometimes entered a file at a point where the situation had already deteriorated. The client may have already lost all their finances or had their home sold. The point of entry in these files was often crucial and providing information to empower seniors early on is one of the best possible deterrents we have at our disposal.

3- Elder law as a complex field of law

Elder law seems to be a commonly misunderstood field of law. One of the things I learned early on at the clinic was how broad and complex the field really was. Many of our cases dealt with a vast variety of legal issues. The common denominator was that they each affected an older person whose rights were at stake. I came to see elder law not as a field that only addresses issues that affect the elderly such as mandates, wills, and incapacity. Instead, it in fact addresses every legal issue imaginable that can affect anyone, regardless of age. The difference is that elder law looks at these legal issues through a lens. The fact is that legal issues affect the older client differently and it takes a certain sensitivity to this to adequately represent them. For instance, an older client who falls victim to fraud is treated differently than a younger person. They are often met with accusations of increased vulnerability and diminished capacity affecting their judgment. These incidents can then be used to paint a picture of the client over time as someone who is inapt.

4- Focus always on the individual who is at risk

Who is the client? This summer, I learned to constantly ask myself that exact question. It may seem straightforward, but in the field of elder law, it can be easy to sometimes lose track of the answer. The answer is, of course, the person whose rights are at risk. The problem arises mainly when the person’s capacity is already diminished and a concerned family member or friend is our main contact. Although the initial information is coming from these concerned individuals, it was essential that we meet with the client. This provided the opportunity to see for ourselves the capacity of the client in order to determine if they could even name a legal representative or if the court would have to appoint one. Also, this focus on the client would inevitably lead us to meet with the opposing party to get a full picture of what is going on. I learned that there are always two sides to a story and that if we simply take one family member’s version of events and forcefully advocate that as the issue, we cannot be authentically representing the client. It is critical to look at the whole picture, try our best to determine what the clients values and wishes are, and then seek to determine how best to achieve them; regardless of which concerned family member’s wishes this may coincide with.

5- A team of multi-disciplinary professionals is invaluable-Cordiality is key

I learned quickly that this not a domain where you can work alone. It takes a team of professionals including social workers, doctors, occupational therapists, physiotherapists, family members, lawyers, and the list can just go on and on. In order to achieve our goals, it was almost always necessary to work with a team of professionals. By surrounding the client with support and various individuals all working together, we were better able to represent their interests. If we had tried to work against instead of with one of these professionals, the results would likely have been disastrous. For instance, a case might involve a client who is preparing to return home from a residence and the children are concerned this is a bad idea. By working together, a social worker could set up a plan to have in home assistance for meal preparation or housekeeping, if needed. Therapists can work with the client to determine if they require additional assistance physically or perhaps with finances. Evaluations can be done to lay out any measures needed to ensure the security of the client and therefore, pacify the concerned children.

Furthermore, I also saw how important it was to remain professional and cordial with the team. Not just for the lawyers involved, but also for the client and their family members. Confronting these people or acting aggressively can practically guarantee a negative remark in the client’s file that can later be held against them. I learned that our clients must remain positive and respectful despite sometimes being frustrated with the process.

6- Right to refuse care

Among all the issues we looked at, the right to refuse care was perhaps the most shocking to me. Clients were essentially being stripped of their legal rights upon being declared incapable and those charged with their care were blindly acting in what often appeared to be their own self-interest. This was mostly seen in cases where a mandate had been or was in the process of being homologated and the mandatary was immediately ready to ship this person off to a residence with little regard to respecting the values of the person. In some circumstances, the client was not so diminished that they were unable to express their wishes which were to remain at home for as long as it was feasible. In others, relatives were able to attest that this person had always wanted to remain in their home. However, their refusals were not being heard. There is a principle of the right to refuse care, which encompasses placement in a residence, which is so fundamental yet seems to be widely ignored. I was introduced to article 16 of the CCQ which clearly states that an individual who has been declared incapable still retains the right to refuse care. Without authorization of the court, they cannot be shipped off to residences on the basis of being inapt alone. Yet, despite this article, this is exactly what is being done and very few people know that they can challenge this.

Also, I saw that one of the most basic principles of acting as an administrator is that you must do so in accordance with what you know to be that persons wishes. If their wishes are not known, then to respect what their values have traditionally been known to be. However, we saw this being overlooked repeatedly. Family members who have been named as mandatary, curator, or private tutor, were looking at what would be the most convenient for them. This was often done with a thinly veiled attempt at claiming it was for the person’s security or to protect the finances. But all too often, we saw that protecting the finances was actually a means to protect their eventual inheritance and security claims masked the fact that they did not want to be burdened themselves with the person’s care needs.

7- General and broad mandates present problems

Another factor that was prevalent was the misuse of very broad mandates. Many notaries create these standard form mandates giving wide and general powers, yet when placed in the wrong hands, the potential for abuse skyrockets. I learned that being more specific in a mandate can go a long way. For instance, detailing your wishes regarding living in a residence in the event that you become incapable would be incredibly helpful for many of these debates we saw regarding what the person’s values really were. Also, it would be beneficial for a mandatary to be informed of their role and powers and in what capacity they should be acting. Transparency is essential when taking on this role and informing the person acting of that beforehand would ensure that they take all the necessary precautions such as keeping receipts and providing accounting reports. Conflicts of interest were also readily apparent in almost all of these situations. The person named is almost always the same one who will inherit. While it may be impossible to avoid the conflict altogether, informing them of their responsibilities may at least alleviate some of the problems we encountered regularly.

8- Ageist attitudes are still prevalent

Finally, I think what I took away most from this experience was not actually a legal issue but a social one. Time and again, I saw just how widespread ageist attitudes were. At one time or another, it affected almost every one of our clients in some way. While addressing their legal issues, it always felt as if we were also simultaneously fighting an uphill battle to convince those involved to be more open minded to different interpretations of events and not bias their opinions simply because of the age of the client. For example, an evaluation of a client stated that they found her living at home with her fridge completely bare. They also claimed she could not use an interac machine and that she had urinated on her own floor because she had been unable to get to the bathroom on time. This is precisely what someone who has pre-determined views on the older client and who has become biased reading similar negative reports from colleagues would see. Our own visit to the same client’s house revealed that she carefully divided and stored all her food in her freezer and would defrost her meal daily. Looking at her refrigerator alone was useless as she seldom stored food in there aside from soft drinks. She also had two cats, one who had an accident on the kitchen floor that day and she had not yet discovered it. She admittedly could not use an interac machine because she had never had the need to. She preferred going to the bank teller and doing her banking with a person, which is perfectly normal for an older client. There were many cases of this taking place where this ageist attitude was preventing those involved from looking a little more carefully at the person and automatically concluding they must be incapable.

I saw the same issue with regards to the environment where a client is evaluated. For instance, this same client was tested in the residence to see how her cooking skills were. They decided she was not able to safely cook her own meals. However, a quick visit to her house where she was comfortable in her own kitchen, with appliances she was familiar with, and not under any pressure, showed us a very different picture. This woman was able to cook wonderfully and with grace and took every safety precaution imaginable.”

. . . . . . .

“(The Clinic) has been an enriching part of my law school experience. I originally applied to law school because I was interested in bioethics, the interaction between the law and the person. Through the Clinic, I have learnt that there is a great difference between this notion in the abstract and in fact. It is very hard to do what the Clinic does, to see people, come to understand them quickly, and advocate for their rights, in what most times seems a situation of conflict. It is no secret that I found this emotionally painstaking at first. The experience has, however, taught me how to embrace a sense of detached compassion. Heart is necessary in this line of work, but too much heart can hit too close to home. Detached compassion is what allows one to be the best advocate possible. Pride must also be taken in the small victories. For example, in the case of (one of our clients this term), your intervention allowed her to stay at home that much longer. This is a victory.

In the end it comes down to managing expectations, and expectations are very different when dealing with people and their own interests, versus contractual relationships, for example. The expectations in the Clinic’s case are very high: there is no higher interest than the very self-determination that is at issue in all of the Clinic’s cases. Every step towards these expectations is a success, even being in someone’s corner, advocating for them, is a success. This is the realization that I have come to. It’s not as hard to deal with other people’s hardships when any help is some help, especially when any help is the best help one has to offer.

This Clinic experience has brought me full circle, and allowed me to explore what I originally came to law school for.”

. . . . . . .

“Unlike most of the McGill Law courses, which are heavily based on textbook- and case-readings, this community-based-service-learning allowed me to interact with people from different walks in the community, to learn by observing and doing. While my mentor and lawyer, Me. Ann Soden, was tremendously helpful in teaching me the principles and key issues in elder law, my learning was enriched by in-field observations and actions. My activities ranged from attending educational conferences to observing court motions and expert examinations; from visiting clients and their caregivers to doing research on the rights and autonomy of seniors in residences, and the right to access adoption records across Canada. All in all, I find the hands-on learning experience rewarding.”

. . . . . . .

“Working at the Elder Law Clinic has provided me with an opportunity to learn fundamental principles of law outside the context of my casebooks. The elementary right to be heard takes on new meaning when a court fails to consider with complete sincerity the request of an elderly mother seeking to live with her son and not, for instance, in a residence. The importance of respecting the autonomy of clients with diminished capacity is equally transparent in situations where both loved ones and doctors disregard or fail to listen to those individual’s most basic wishes and desires. Most importantly, working with Me Soden has demonstrated to me that the law is not necessarily synonymous with litigation or waging battles in court. Rather, through the provision of legal information or simply meeting with all concerned parties in a mediatory environment, solutions to legal problems are not only possible, but also likely to result.”

. . . . . . .

“Discovering the novel and expanding field of elder law through practical experience and the Elder Law Clinic was an interesting and rewarding experience. Learning directly through practice gave me a clear picture of the multiple challenges and skills required for this type of practice. Elder law is a thoroughly multidisciplinary field. Throughout the year I encountered a variety of legal issues pertaining to various areas such as family law, consumer protection, homologation of incapacity mandates, or even property law to name a few. But elder law is also multidisciplinary in the sense that it requires the ability to work in contact and collaboration with medical professionals, social workers and mental health professionals. A panel event including lawyers, judges, medical practitioners and researchers as well as social workers organized by the Centre at McGill highlighted the opportunities offered by such collaboration in elder law. Overall, I realized that often our adversarial legal system is ill-suited to dealing with elder law issues, and can antagonize parties instead of promoting essential values of autonomy and dignity.”

. . . . . . .

“The field of elder law relies on a network of professionals to support clients and to protect their autonomy and the exercise of their civil rights.

I had the great pleasure of participating in informal discussions with a number of professionals with whom Me Soden works directly in her practice. A meeting with the Curateur public provided me with insight into the challenges of applying the law on protective regimes and tailoring them to the specific needs of each older person. A meeting with a social worker and a geriatric psychiatrist went a long way to helping me understand the difficulties and pitfalls of capacity assessments, the first official step toward a protective regime for an older person.

This type of interdisciplinary and interprofessional dialogue is the key to successful practice in elder law. Social work and health professionals become sensitized to the legal aspects of capacity assessments and the consequences of recourse to protective regimes. At the same time, legal professionals come to better understand the constraints of socio-medical practice and the systemic issues with which such professionals are confronted.

In contrast to my multidisciplinary experience with the Elder Law Clinic, however, there seems to be little interprofessional dialogue and collaboration (amongst lawyers and other professionals generally) outside discrete cases and occasional continuing legal education events (such as the personnes vulnérables conference I attended in January). If the promise of safeguarding autonomy—of respecting older persons as full members of society who enjoy the same civil rights all other persons of full age—is to be kept, those who work directly with older persons need to find better ways to share systematically their knowledge and understanding of the complex and intersecting issues that come into play when seeking to support older persons.

If this semester has taught me anything, it is that serving older persons is not simply a matter of finding the right legal solution to a discrete issue, but a matter of finding the right longer-term solution to ensure that older persons retain their autonomy and dignity. This can only be accomplished by embracing the inherently interdisciplinary nature of elder law.”

. . . . . . .

“I gained experience with several files directly affecting the most intimate rights of clients: their autonomy and liberty. Even in cases where the desired outcome has not been achieved, it is impossible not to bear witness to the uplifting effect on clients of being recognised as important and worthy of being listened to and represented. In no case is hope lost.

Perhaps this is where I have learned the most: In starting to form the link between the inherent dignity of the person and the protection of their rights through the law. Legal rights in their correct application form the breakwater protecting the low lying areas of client vulnerability from violation. Good legal representation does not stop at protection of rights, but instead becomes positive advocacy. This advocacy, as I have witnessed, is enmeshed into the fabric of the physical, emotional and spiritual life of the client, guiding the entire ship toward safe harbour.

It is remarkable that in the space of a few months so many opportunities have been made available: speaking with and visiting several clients; coming to understand client stories and compiling notes; being in the presence of and attentive to skilled, compassionate advocacy; being included in the inner mechanics of case strategy; coming to understand co-operative approaches toward the best outcome for seemingly adverse parties; and learning the value of speedy resolution of legal matters. These points only provide the map of the territory of lived experience. The Elder Law Clinic gives a voice to many of the most vulnerable citizens and lifts them up to embrace the dignity of their personhood. It has been nothing less than an immense blessing on me and on the many people you serve.“