I have had both clients and colleagues question the term “elder law”. Some don’t like it but it is a handy term for an increasingly distinct area of the law that not only covers many other legal areas but also a specific segment of the population, i.e. usually 65 and older. Many of these cases start out as family law cases but then morph into cases involving wills, estates, trust interests, and property transfers where capacity and undue influence are front and centre.
What Does Elder Law Look Like?
Recently, we have seen an increasing number of couples in their 60s and 70s who are separating, often after many years of marriage. Sometimes the marriages are shorter but of the second or third variety. Often the spouses have to deal with both their own biological children and their stepchildren.
The primary considerations for these couples generally include support, dividing assets and organizing their estates so that their biological children will benefit when they die rather than the ex-spouse or his or her biological children. For this reason, separation agreements prepared for these cases generally include an agreement by each spouse giving up any interest they might have in the estate of the other.
There are also a number of older couples who are entering into another marriage. They want to protect the assets they have accumulated before they get married again. The best way to do so is to have an agreement written and signed before the wedding day (a “pre-nup”).
Some older couples decide not to get remarried but just to live together. Again, a written agreement signed by both, in which the couple agrees that they will each keep the property they brought into the relationship as well as any increases in value, is advisable (often called a cohabitation agreement).
Occasionally there are people who have pulled sample agreements off the Internet and expect them to have the same force as an agreement drafted by a family lawyer and supported by a Certificate of Independent Legal Advice. Sometimes a ‘home made’ agreement works just as well but the potential for future problems can arise if a client does not obtain legal advice before signing it.
New ‘later’ marriages or the breakdown of long marriages are situations that also wander into the area of wills and estates, and even trust arrangements. It is not uncommon to have a number of lawyers with different specializations, i.e. family, tax and trusts, and estate planning, working together on a particular case.
Depending on the age and health of a person, his or her competence to make decisions on the breakdown of the marriage may also be called into question.
A spouse may be vulnerable to the influence of the other spouse or to the influence of one adult child. They can be taken advantage of whether on cohabitation, remarriage or breakdown of a marriage. Abuse is not limited to physical or emotional attacks. Financial abuse is probably the most common type of serious abuse against an older person. This kind of abuse can leave a person destitute and dependent on their abuser in what is plainly an intolerable situation.
An older person can also find themselves the subject of an application by a spouse or child to be appointed the person’s “committee”. A committee has full control over the older person’s estate (assets) and even their personal affairs. This kind of court application often involves competing applications by family members to be appointed a committee and take control over the older person. It is not difficult to imagine how such a situation can be abused and create further financial “abuse” against the older person whose estate often ends up paying for the legal cost of such an application.
There are a number of non-profit organizations and government services which can help up to a certain point. Here are links to some of them where you can find additional information:
- Canadian Centre for Elder Law
- Seniors First BC
- Seniors Advocate
- Canadian Network for the Prevention of Elder Abuse
- Public Guardian and Trustee of British Columbia
- Assisted Living Registry – Province of BC
However, protecting a vulnerable person’s interests often requires the assistance of the court. For these kinds of issues, you should get legal advice. We may be able to help. If you have questions, contact us.