5 Important Things You’ll Learn at the Osgoode Elder Law Certificate Program

The COVID-19 pandemic has significantly impacted the elder law. This year’s Osgoode Certificate in Elder Law program will provide critical information with COVID-19 as a backdrop for those who care for and those who advise older adults.

This live and interactive online program is co-directed by Jane Meadus, Lawyer and Institutional Advocate at The Advocacy Centre for the Elderly, and Alex Procope, partner of Perez Bryan Procope LLP. This year’s featured keystone speaker is The Hon. Justice Frank N. Marrocco, Lead Commissioner, Ontario’s Long-Term Care COVID-19 Commission, Senior Counsel, Stockwoods LLP Barristers.

Here’s an overview of 5 (of many) important things that will be discussed during the program:

1. Capacity is a Socio-legal Construct

Capacity is a socio-legal construct, not a medical diagnosis.

The basic principles of capacity are based on the legislation and case law applicable to the type of decision being made, not on any medical symptom or diagnosis.

2. Communication Fosters a Lawyer-Client Relationship

Communication skills can help foster a lawyer-client relationship where one might otherwise attribute a client’s behavior to less helpful conclusions like curmudgeonliness.

The following skills and techniques will enhance your interviewing:

• Validating
• Reflecting
• Mirroring
• Reframing
• Paraphrasing
• Questioning
• Clarifying
• Observing
• Linking
• Asking permission
• Normalizing
• Using “and” instead of “yes, but”
• Summarizing

3. Retirement Homes are “Health Information Custodians”

Retirement homes, long-term care home, hospitals and others are “health information custodians” under the Personal Health Information Protection Act, 2004. This means that they are subject to a complex set of rules about how, when and from and to whom they can collect, use and disclose personal health information.

4. Ageism Can Manifest in the Workplace

Age discrimination can play a role in the termination of an employee. Ageism does not need to be the sole, or even the primary, factor in the termination.

There also does not need to be any direct evidence of the discrimination. Circumstantial evidence and inference will do.

5. There is a Legal Test for the Capacity to Make a Gift

In order to be capable of making a gift, a donor must meet the following requirements:

(a) The ability to understand the nature of the gift; and
(b) The ability to understand the specific effect of the gift in the circumstances.

The size of the gift in question is certainly a factor to be considered in the analysis.

Alexander Procope is a partner at Perez Bryan Procope LLP and co-director of the Osgoode Professional Development in Elder Law Program. Mr. Procope’s practice is concentrated in capacity, guardianship, and power of attorney matters. He has frequently been appointed as counsel for allegedly incapable persons in high conflict disputes. He teaches Mental Health Law at he University of Windsor and is Co-CPD Liaison for the Ontario Bar Association’s Elder Law section and member-at-large on its Trusts and Estates Law Section.