Legalese_08-40

Jeff Green | Oct 09, 2008

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[This article, written by Graham Webb, Staff Lawyer at the Advocacy Centre for the Elderly (ACE) in Toronto, first appeared in the Summer 2008 edition of the ACE newsletter. ACE, like Rural Legal Services, is a community legal clinic funded by Legal Aid Ontario. We thank ACE for permission to share Graham’s insights with you.]

Options to Facilitate Contact

The Police and the Criminal Code of Canada - If all avenues of communications are closed, it might be possible to ask the local police to visit the older person and make inquiries about whether he or she wishes to live in the present situation, and to have contact with friends and other family members. Forcible confinement is a criminal offence under section 279(2) of the Criminal Code of Canada, but an investigation and charge of this type would be extremely unlikely.

More often, if involved, the police would merely try to meet with the older person to ask about his or her wishes. If it turns out that the older person appears to be mentally capable and unwilling to have communication with the friends or family members in question, those wishes must be respected. If the older person appears to be incapable, and unwilling to have communication, then those incapable wishes might also be respected unless there is a strong reason to disregard them.

Court Appointed Guardians - As a last resort, if the older person appears to be incapable of making his or her own personal care decisions, a friend or family member could bring an application to the Superior Court of Justice to be appointed as the older person’s guardian. This is a very expensive and complex legal procedure so it is beneficial for the person applying for guardianship to retain a lawyer. Legal fees would need to be paid, which may eventually be reimbursed from the older person’s estate if the application succeeds and there is enough money in the estate to allow reimbursement. Further, court proceedings are usually highly confrontational resulting in the division of families and the destruction of relationships. It is also very intrusive into the life of the older person who, capable or not, may be hostile to being placed under guardianship. However, where an incapable older adult is placed in a position of harm by the denial of access to friends and family, a guardianship application may be the only legal recourse.

Investigations by the Public Guardian and Trustee The Office of the Public Guardian and Trustee has a Guardianship Investigations Unit that can investigate allegations where a person incapable of personal care decisions is suffering or is at risk of suffering serious adverse effects. The investigation may result in the court appointing the Public Guardian and Trustee as the person’s guardian on a temporary basis. The Public Guardian and Trustee can be contacted at 416-327-6348 or 1-800-366-0335.

Conclusion: Friends and family of older adults, either living independently or in settings where another person has control over access to the older adult, frequently report difficulty and confrontation in arranging personal contact with their loved one. In cases where personal contact between the older person and somebody important in his or her life is denied, the issue of choice should be front and centre. It is important to know whether the older person is voluntarily choosing to avoid contact or whether there is some other reason beyond the person’s control.

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