Elder Law and Elder Law Mediation


Elder Law is a rapidly developing area of law due to the growing number of elderly and the strong correlation between increasing age and cognitive decline due to dementia and Alzheimer’s disease.

Issues of capacity are central to Elder Law; Rarely, however, will someone have complete lack of capacity - often capacity will fluctuate depending on a variety of factors, including health issues and medication abuse.  If an older adult has not made provisions for incapacity planning, such as having a Representation Agreement and Power of Attorney, then the older adult is particularly vulnerable if there is a decline in cognitive ability and loss of capacity to make informed decisions.

If an older adult loses capacity to make decisions about health care, personal care and financial affairs, then the only option is an application to court for an Order appointing another person as Committee. Family members often become embroiled in conflict as to who is the most appropriate person to become Committee of the older adult, often leading to legal disputes that are time consuming, costly and can tear families apart.

In Canada services for older adults are limited and there unfortunately are insufficient resources to deal with the increasing demand for health care services and social and legal support services. More and more families will be called upon to provide care and assistance to an older family member, a fact which poses unique challenges to adult children who will often have children of their own at home to care for as well as demanding work obligations. These unique challenges can cause disputes with other family members, particularly when geographical limitations prevent some family members from contributing to the care of an elderly parent.

The Canadian Centre for Elder Law recently released the first significant report in Canada on the use of mediation involving Elder Law and Adult Guardianship.  B.C. is at the forefront of Elder Law Mediation. Under new legislation, there will be mandatory mediation in disputes involving Adult Guardianship. The issues will involve decisions impacting the older adult, their families and intergenerational dynamics, such as who will be the substitute decision maker for health and personal care, and who will be the substitute decision maker for legal and financial decisions.

For more information on this report please go to: http://www.bcli.org/ccel/projects/elder-and-guardianshipmediation

Elder Law Mediation

Mediation involving an older adult with diminished cognitive ability is often fraught with complex issues involving both ethical and legal issues as well as intergenerational parties. The mediator needs to be particularly knowledgeable not only in Adult Guardianship Law but knowledgeable about cognitive disorders, medical care, home-care and long term care facilities. The mediator also needs to be sensitive to the wishes of the older adult and the delicate balance between the older adult’s right to self- determination and the need to protect the older adult from abuse, negligent and self-neglect.

Elder Law Mediation can involve any of the following:

  • Personal choices about where the older adult lives
  • Health care decisions
  • Housing needs
  • Medication monitoring
  • Financial planning
  • Abuse and/or neglect
  • Mental illness and psychiatric care
  • Long term care facilities
  • Inheritance expectations
  • Conflict with caregivers and other family members
  • Family caregivers and respite care

Jacqueline Horton is a certified mediator whose preferred area of practice is Elder Law. She has taken specific training in Elder Law Mediation; with her background in nursing she is particularly knowledgeable to the unique medical and legal issues regarding older adults and is sensitive to the need of the older adult to be involved, to the extent that is reasonable, in decisions as to their care.