By Sara Pon – Canadian Centre for Elder Law
Introduction
We are pleased that Kevin R. Smith will be presenting at the 2019 Canadian Elder Law Conference. Kevin has an LLM in Elder Law, and is currently an elder law consultant in Vancouver. Kevin has previously worked as an elder law lawyer and as a lawyer with Seniors First BC.
In this blog post, we share an interview with Kevin on his upcoming #elderlaw2019 conference presentation, entitled An Elder Law Toolkit. Kevin brings his wealth of experience in the elder law field to share with us his tools for elder law lawyers and their clients, and his advice for lawyers new to elder law.
Can you describe your presentation on the elder law toolkit?
Kevin: It will be a walkthrough of a curated collection of various resources for an elder law practitioner, especially someone who is new in the field. It will include various checklists and other published materials for the practitioner, as well as material they could use to hand out to their clients. The reason for the PLE (public legal education) material is these areas are all fairly complicated and probably new to the client, and the client really needs material to look through.
How did you curate these resources?
Kevin: It comes from my own experience over the years practicing in the area as an elder law lawyer and as a staff lawyer at Seniors First BC, dealing with elder law issues about capacity, elder abuse, seniors care, and seniors housing. Through my education in the USA, a Master of Laws in elder law from the Center for Excellence in Elder Law, I learned a great deal about the resources available in the USA and many of these are applicable here.
How will learning about your elder law toolkit support a lawyer’s practice?
Kevin: I think elder law is a very challenging area for a lawyer to start working in. There aren’t any elder law courses per se in law schools, and an elder law practice presents a lot of challenges for a lawyer. The lawyer needs to have a more holistic or multidisciplinary approach to the practice of elder law. The toolkit will help the lawyer with being better prepared to deal with some of the issues, accommodate older adults and meet the ethical challenges. It will also help the lawyer in educating their clients on the issues that their clients need to consider.
What do you feel are the most pressing ethical and practice issues facing lawyers working in the area of elder law?
Kevin: A big question is who your client is. This is an especially important question in elder law. You often have a family member bring an older adult into the lawyer’s office and it is important to recognize who you are going to be providing service to. There is an American Bar Association resource called Why am I Left in the Waiting Room? It contains a very good discussion of why the family member who thinks they should be in there and be involved with everything should not be. The lawyer should as much as possible try to take instruction from, and be retained by, the older adults.
There are other ethical and practice issues:
- The lawyer must consider when to maintain autonomy versus when to start getting involved in protection with clients who are lacking in capacity.
- Various conflicts of interest that can arise. In terms of financial questions, there can be a question of whether the family member is interested in protecting the older adult’s funds or if they are more concerned about protecting their own inheritance.
- Practice issues include how you accommodate older adults in your practice and how you make your office and website elder-friendly.
What are the most important areas lawyers need to know about, but lack training in, in order to better help older adults?
Kevin:
- One obvious one is about assessing incapability, and they don’t teach that in law school. It is what the lawyer needs to do. A lawyer can’t just send a client off to a doctor and say can you tell me if this person is capable or not. It is a legal determination the lawyer has to make – is the client capable at this time to do this task. It is important to recognize that there is a difference between a medical determination of someone being incapable and whether they are still legally capable of, for example, making documents or providing instructions.
- An important area is identifying and responding to elder abuse. Some of the responses to elder abuse include specific planning documents and representation agreements. Lawyers need to know more about those, especially section 7 representation agreements, which can be a useful last grasp response to someone who may lack capacity to make many decisions.
- There is the whole area of seniors housing and care. Those places are a home for the senior. At the same time, they are also a workplace. A lot of issues come up in relation to the overlap between housing, health care and privacy rights of the senior on the one hand, and workers’ rights on the other. They may sometimes appear to be in conflict.
You have a strong background in community advocacy. What do you think is the most rewarding part about representing older adults?
Kevin: I think you are responding to a real need. People can be in a very challenging time of their life, and they can be in desperate situations. You are not just helping people. You can also help people help themselves, and help them retain their agency and their independence at a time when they are feeling lost or very vulnerable.
You are very knowledgeable about advance planning tools. What is the most important thing you would tell an older adult who wants to plan for a time when they may have reduced capacity?
Kevin: Besides the obvious: do it! It is very important to do it. It is also very important to carefully choose the people who are going to be basically your agent. To recognize that you are handing over complete control to them, while at the same time recognizing you can maintain some control up until the point when complete control is handed over. For an attorney, you must have somebody who you can implicitly trust because you are basically giving them a licence to steal by handing over control of your financial and legal affairs.
In terms of representation agreements, you may be giving someone else control literally over life and death decisions, and people often assume that someone else will know their values and wishes and respect them. Often, people have been wrong about what their chosen agent or proxy will do in a given situation.
You are a frequent attendee at the Canadian Elder Law Conferences. What is your favorite part about the conference? What sessions are you looking forward to this year?
Kevin: Besides of course hearing knowledgeable people talk about the various issues and challenges of elder law? One enjoyable part is the debate that is usually set up, hearing two sides trash through some of the issues involved in elder law. As for this year’s conference, I am interested in the sessions on legal and policy issues in long-term care, balancing risk and self-determination, and the student paper on guardianship tribunals. These sessions are all wrestling with very challenging issues which come up in elder law. I enjoy the wrestling with those challenging issues.
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. Kevin’s presentation, An Elder Law Toolkit, will be at 2:15 pm on the second day, Friday, November 15, 2019.