Elder Law Case Update at the Canadian Elder Law Conference: Interview with Emily Clough

8 November 2019
By Sara Pon – Canadian Centre for Elder Law

We are excited that Emily Clough will be presenting at the Canadian Elder Law Conference 2019. Emily is a partner at Clark Wilson LLP, chair of the firm’s Elder Law group, and is on the CCEL’s Board of Directors.

In this blog post, we share an interview with Emily on her presentation, Elder Law Case Update. Emily brings her wealth of experience as an estates and trust lawyer who frequently works with clients with cognitive impairments to discuss with us recent elder law cases and tips for lawyers practicing in the elder law field.

What does elder law mean to you?

Emily: Elder law is a variety of different areas of legal practices that often overlap. They touch on anything to do with an older adult in our society. For example, it could be estate planning, incapacity planning, property law, family law, or financial matters. The unifying theme tends to be around the vulnerability that can come as we age.

What kind of legal issues are captured by the topic?

Emily: These legal issues can include estate planning, incapacity planning, rights to manage assets or personal care decisions. Legal issues also include rights about where to live: whether one is living at home and who makes these decisions, whether it’s yourself, someone else, or the government is going to step in.  Family law is increasingly coming into elder law issues as we are seeing more and more ‘grey divorce’.

What are some of the recent case law issues that you are going to discuss in your presentation?

Emily:

1. One of the things I will touch on is the varied housing or residence issues. There is an issue with whether people get to live at home when they may be at risk, and whether the government may intervene and remove somebody from a home and detain them.
2. I will talk a bit about estate planning and some of the risks that come when people do estate planning. There is a recent case out of BC (Gully v Gully, 2018 BCSC 1590) where a mother put her house into joint tenancy with her son. Her son later had some bankruptcy problems. The court found that the creditors could come after that mom’s house. She was just trying to think ahead and look toward to the future, but she ended up facing these risks and downsides of doing what she thought was un-risky estate planning.

At the last conference, you spoke on the topic of capacity to marry. What do you think lawyers, and the public, need to know about predatory marriages?

Emily: The capacity to marry requires one of the lowest forms of capacity. It is very easy to become married, which would put any adult who has some type of vulnerability or cognitive issues at a potential risk of being preyed upon.

Especially for the public, they should be aware of the importance of ‘eyes on’: when you see someone in your life who seems to be in a position of vulnerability, keep your eyes out for them. If you see something, ask a question. Sometimes this can feel uncomfortable for us because we don’t want to pry too much, but we do have adults who are at risk and it’s very easy for an adult to be preyed upon and too quickly become married.  As a society, we will do better by trying to look out for those who we see as vulnerable.

Creating a body of case law requires litigants. Can you identify any access to justice or practice barriers that are impacting the development of elder law jurisprudence in BC?

Emily: I think there is an access to justice issue for people who have cognitive impairments that are going to be progressive, where their capacity is only going to get worse as time goes by. Our justice system can tend to be slow. We have trouble obtaining quick hearing dates, and our court proceedings can be delayed. For adults who are facing progressive diseases where their capacity will decline over time, it is hard for them to access justice in a quick and timely way while they have capacity.

It is also hard for people to access a lawyer. It is complex to retain a lawyer and you need to have capacity to do that. It can be hard for people with capacity issues to find a lawyer to act for them. The lawyer may face difficulties because it may be hard to get a hold of the client, and it may be hard for the client to always have the ability to give instructions.

What are the top things lawyers should know about in order to help a client who may have a reduced capacity?

Emily:

1. The first thing to remember is the presumption of capacity. All adults are presumed to be capable, and as lawyers we should embrace this as our guiding principle. Even if someone is having some difficulties in capacity or fluctuation of capacity over time, they may still have the ability to instruct and retain counsel.
2. It is about patience. You may have to work at a different pace than you are used to doing.
3. A lawyer may have to communicate in a different and perhaps more deliberate way with people with diminishing capacity. Part of being respectful of an adult is to communicate in a way that they can receive and consider. You have to communicate effectively, to meet that adult where they are at. If they prefer to communicate in person, communicate in person. They may prefer to communicate in writing or in a different type of writing. Whatever it may be, you have to adapt to that person.

Canadian Elder Law Conference

The Canadian Elder Law Conference 2019, entitled Bridging the Gap: Elder Law for Everyone will be taking place from November 14-15, 2019 in Vancouver, BC and via webinar.

Emily’s presentation, Elder Law Case Update, will be at 11:05 am on the first day, Thursday, November 14, 2019.

Emily will also be moderating the Human Rights for People Living with Dementia Panel at 1:15 pm on the second day, Friday, November 15, 2019.