Many concerns have been raised with respect to the ability of older adults to meaningfully access the law and to ensure that legal standards and protections are complied with.
A. Monitoring the Effective Implementation of the Law
A recurrent theme in the submissions was that of laws that are ineffectively enforced or administered. The Advocacy Centre for the Elderly called this the phenomenon of “Good Law, Bad Practice“.
“ONA notes that section 2(4) of the Nursing Homes Act provides there is a deemed contract between the resident and the home to respect and promote the rights set out in the Bill of Rights, but there is no mechanism in the Act to enable the residents to enforce the rights in the deemed contract. These rights are too regularly ignored. The LCO should propose an effective mechanism for the enforcement of these rights.”
– Ontario Nurses Association
“We are concerned not only that our current legislative framework is inadequate, but also that the processes and in the implementation of the laws, and both the laws and procedures are misapplied. A prime example is the Substitute Decisions Act (SDA), which is intended to protect the vulnerable. However, it makes the appointment of substitute decision-makers and creation of powers of attorney an unsupervised process, while making the scrutiny of appointments and the abusive acts of these substitute decision makers complex, slow and expensive. As a result, powers of attorney are vulnerable to misuse and abuse, and justice delayed in the curtailing of abuse of these powers is almost certainly justice denied. These breaches of the spirit and intent of the law involve fundamental Charter rights.”
– Ontario Bar Association
In a similar vein, a number of submissions pointed to laws that are well-intentioned, but are so cumbersomely or confusingly designed that they are very difficult to implement. Many pointed to the problematic status of Ontario’s laws regarding accessibility for persons with disabilities. Despite the protections of Ontario’s Human Rights Code, which mandates the right to equal access to services and facilities for persons with disabilities (to the point of undue hardship), the specific requirements of the Ontario Building Code regarding accessibility, and the new Accessibility for Ontarians with Disabilities Act, 2005, buildings and systems continued to be designed, built and renovated in a way that creates and perpetuates barriers. Service providers are confused by the overlapping requirements of the three statutes, enforcement must for the most part take place through Ontario’s overburdened human rights system, and progress towards accessibility is slow.
Particular concerns were raised as to how law can effectively provide resolution in the context of the highly personal issues and complex familial relationships that are often at stake in elder law. The Ontario Bar Association urged the LCO to consider:
Whether the real motivating issues of family conflict, personal financial needs are frequently obscured by the focus on “capacity” in the law and legal processes. The primary focus of these processes should be needs-based, addressing the social relationships of the person, how the people in those relationships are interacting with each other, and the best plan for that person and his or her finances or living arrangements.
B. Barriers to Access
Older adults may face a range of barriers to accessing and enforcing their legal rights, including physical, financial and attitudinal barriers.
Because many older adults are living on low or fixed incomes, the financial costs of accessing the law may be beyond their means:
“The principal barrier to access to justice is the lack of availability of legal aid, especially in civil matters. Means tests for legal aid in the various jurisdictions typically exclude all but the very poorest, leaving a large segment of the population with modest incomes without access to affordable legal advice and representation. While this problem is not restricted to the elderly, the elderly are probably affected disproportionately due to their generally lower levels of annual income.”
– British Columbia Law Institute
It should be noted that many older adults are “house rich but cash poor”: Legal Aid Ontario will often require individuals to put a lien against their house in order to receive legal assistance, but as many older adults worry that this could result in the loss of their homes, they hesitate to do so, and therefore may not have the means to afford legal advice or assistance.
Older adults are frequently unaware of their legal rights, the remedies available, and of avenues for support and assistance.
“Though many laws do already exist, one of the main challenges is often lack of awareness of these and/or the lack of resources to back them up, an example being the availability of Rights Advisors to inform those who have been declared incapable of their rights, as well as the resources available to them. We therefore respectfully request that while considering changes in the law you also consider changes in policies and regulations which would ensure funding availability to support these changes.”
– Prevention of Senior Abuse Network – Simcoe County
This is particularly an issue for older immigrants who may have little knowledge of the infrastructure available to them, and do not know who to ask or where to go for assistance.
“They have no community resources known to them. Sometimes their families do not want them to know where to go. Seniors may be extremely isolated and stuck providing household chores and childcare services for sponsoring families. They are thus deliberately denied information in order to keep them in a particular setting. The legal system, in tandem with voluntary organizations and outreach services or places of worship should develop services to ensure individuals who victimize seniors are castigated by the public, the news media and the courts.”
– Ontario Network for the Prevention of Elder Abuse
Lack of information and awareness is a significant issue, not only among older adults, but among those who provide services to this group. Many submissions pointed to the importance of better training and sensitization for actors in the justice system, not only on legal issues specific to older adults, but also related to the barriers, stereotypes and challenges faced by older adults. The Advocacy Centre for the Elderly noted that lawyers may fail to consult with the older person who is their client, instead obtaining instructions from friends or family members. As well, lawyers who are not familiar with elder law issues may provide incompetent representation because they do not understand the applicable law. The Ontario Bar Association noted that:
There exist Guidelines for practitioners assisting these individuals, but many of the Guidelines are out of date, the availability is not known to those who need them, and the Guidelines are not followed or provide inaccurate information.
Similar concerns were raised with respect to the police, judges, evaluators under the Health Care Consent Act and other professionals providing services to older adults.
Even where older adults are able to access the law, in some cases there are no effective remedies to redress the wrong done.
“An extra disincentive for older persons in seeking access to justice is the lack of monetary awards for successful cases. ACE generally does not recommend that older adults commence lawsuits if they are seeking primarily financial compensation because very few types of damages options are available…The LCO may wish to consider different mechanisms, which are not based in litigation, to compensate older persons (e.g., creating regulations which address injuries in long-term care facilities).”
– Advocacy Centre for the Elderly
Some older adults face additional challenges in gaining access to the law. Older adults living in institutional settings may face unique challenges in accessing rights and remedies, given their isolation and dependence on the institutions where they live.
There are also special issues for the oldest of older adults – for example, those over age 80 – who cannot afford to wait for a remedy. In situations where a claim cannot be continued after death, the opposing party may adopt a strategy of delay in the hopes that they can outwait the victim.
“The current legal system is too slow, too expensive and too onerous. Older adults need to use mechanisms that facilitate a fast remedy and closure.”
– Ontario Network for the Prevention of Elder Abuse
“Another reason why older adults do not have access to the justice system is the amount of time it takes to resolve a court case. Many older adults choose not to initiate legal proceedings, even if their case appears to be meritorious, because it may take many years and there is the possibility that they may die before a resolution is reached. The LCO may wish to examine civil procedures and whether existing procedures may be changed to facilitate speedier resolution of matters.”
– Advocacy Centre for the Elderly
Lack of physical accessibility and attitudinal barriers may create additional barriers for older persons with disabilities in the justice system:
“Their access to fairness in the justice system is systematically undermined by lack of protocols and accommodations at all stages of the administration of the criminal justice system; from the complaints and investigation process, to decisions to prosecute or not, to the standards and assumptions and stereotypes that often determine people with intellectual disabilities will not be able to give credible testimony.”
– Canadian Association for Community Living
The Fédération des aînés et des retraités francophones de l’Ontario highlighted the barriers to justice for older Franco-Ontarians:
Unacknowledged as a barrier is the lack of access to French-language services, which keeps French-speaking older adults from fully accessing the court system. Even though Ontario law states that this group of Ontarians, those who speak French, are entitled to legal services in their mother tongue. Nowhere is it mentioned in your consultation paper that one of the barriers to the law for French-speakers… is the poor availability of services in French of a similar quality to those offered in English..
Older immigrants experience similar language-based challenges. The Ontario Network for the Prevention of Elder Abuse recommended that translation services should be readily available, as should papers in various languages. Literacy levels in public documents should be properly simplified so people can understand the legal system and where help is available.
C. Designing a More Accessible System
There are many suggestions for improving supports to older adults to ensure easier access to legal system, including expanded legal aid supports for older adults; better education, training and supports on issues related to older adults for actors in the justice system; improved accessibility and accommodation for disability-related needs; and education and outreach to all of the diverse communities that make up the older adult population.
For example, the Canadian Association for Community Living recommended a number of measures to improve access for older persons with disabilities, including the creation of legal mandates for the development of protocols, training for police and crown attorneys, and provision of supports to assist older persons in the justice system. As well, they recommended that government invest in expanding the capacity of community organizations to assist older persons in fair access.
In addition, many submissions recommended that the LCO consider, not just how older adults could be better supported to access current systems, but how alternative compliance and enforcement systems could be designed to ensure both easier access and better outcomes for older adults in relation to the law.
Consultees pointed to many problems with the current systems with which older adults must contend. For example, one consultee pointed to myriad concerns with British Columbia’s “direct access” human rights system. This system provides individuals who believe their rights have been violated with access to a specialized administrative tribunal which is tasked with providing speedy and just decisions on human rights claims. While such systems are intended to improve access to the law for vulnerable groups, complex and sometimes rigid requirements and procedures, when paired with inadequate supports, can result in barriers and exclusion for older adults and other vulnerable groups.
Submissions recommended a wide range of potential approaches, including greater use of administrative law systems, alternative dispute resolution, proactive compliance mechanisms (such as audits), expanded and strengthened provision for rights advice, and the creation of special advocates, such as ombudsmen.
For example, the Prevention of Senior Abuse Network – Simcoe County suggested a proactive, audit-based system for increasing transparency regarding the use of Powers of Attorney and reducing abuses. This system would require registration of Powers of Attorney that become activated due to a declaration of incapacity, and create an audit system to ensure adherence to the legal responsibilities associated with the Power of Attorney.
The Ontario Bar Association noted that mediation and arbitration are increasingly popular and an effective means of resolving disputes, and can provider speedier and more economical access to justice in many situations. As an example, the University of Windsor Law School’s mediation service provides specialized services for older adults who have been the victims of financial abuse.
A number of organizations recommended that the LCO examine the desirability and feasibility of some type of independent advocacy office for older adults. This might be specific to particular systems or issues, or might be a general advocacy office devoted to the needs of older adults.
“In many incidents seniors are intimidated by agencies and authorities and so therefore do not access resources or supports available to them. Legislating the availability of Senior Advocates would alleviate some of the anxiety and help them n