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Elder Law

Pensions and Income - Introduction

If you are 65 or older and meet certain residency requirements, you are eligible for Old Age Security (OAS) benefits from the Government of Canada. If you have no other source of income or very little other income, you may be eligible for the Guaranteed Income Supplement (GIS). You may also be eligible for a small pension from the Government of Ontario known as the Guaranteed Annual Income System (GAINS). If you are 60 or older and have paid into the Canada Pension Plan (CPP) during your working years, you may be eligible for CPP benefits. CPP also pays disability benefits to persons who have paid into the plan, who have a severe and prolonged mental or physical disability and are unable to work. CPP may also provide benefits to survivors of persons who have paid into the plan.

Persons who have spent part of their life in another country may be eligible for a pension from that country, or be eligible for a pension from Canada if there is an agreement between Canada and the other country.

Persons under the age of 65 who are unable to find employment and have little or no income or savings may be eligible for social assistance (welfare) under the Ontario Works Program. Those persons over 65 who are not eligible for OAS and have little or no other income or savings may also be eligible for social assistance.

The Ontario Disability Support Program (ODSP) provides income support to persons that have a disability that is expected to last a year or more, and that limits the ability to work or function in the community. ODSP is only available to those with little or no other income or savings. In some instances, persons aged 65 or older who are not eligible for OAS may qualify for ODSP if they do not qualify for a pension under the Old Age Security Act (Canada). We recommend that you contact your local community legal clinic for further information.

Persons may be eligible to receive private pensions from their employer, or the employer of their spouse or partner.

Health Care Consent & Advance Care Planning - Introduction

Advance care planning is a process of planning for a time when you may not have the mental capacity to make decisions about your health care.  It usually involves choosing someone to make decisions on your behalf when you are not able to do so.  This person is known as a substitute decision-maker.

A key element in advance care planning is the communication between you and your substitute decision-maker.  If you have specific ideas about the type of health care or living arrangements that you may or may not want for yourself in the future, you need to communicate these ideas to your substitute decision-maker.  Examples of information that you should share are your likes and dislikes, how you want to be treated, where you want to live, how you want to live and your specific wishes about health treatments, medications and end-of-life care.

In accordance with the Health Care Consent Act, your substitute decision-maker must follow your last known wishes when making decisions for you when you are incapable.  You may have expressed your wishes in writing, verbally or by alternative means of communication (e.g., Bliss Boards or sign language).  If your substitute decision-maker is not aware of any wishes applicable to the particular situation, he or she must act in your best interests and take into account your values and beliefs.  The rules for how your substitute decision-maker must determine your best interests are set out in section 21(2) of the Health Care Consent Act.  

Please note that advance care planning does not replace health consent.  Even if you have expressed wishes about future health care, health practitioners (e.g., doctors, nurses, physiotherapists) must still get consent or refusal to consent before they treat you. That consent must come from you if you are mentally capable. If you are not mentally capable, health practitioners must turn to your substitute decision-maker for consent even if you have a written advance directive or any other form of advance care plan.

It is your substitute decision-maker that must determine if the wishes you have expressed about your future care are applicable to the decision that he or she must make on your behalf. That is why it is important for you to discuss any wishes with your future substitute decision-maker so that he or she understands what you want.

Power of Attorney - Introduction

A power of attorney is a legal document that gives someone else the power to act on your behalf.

In Ontario, the Substitute Decisions Act sets out the law about the two types of power of attorney that can be used if you become mentally incapable: a power of attorney for personal care and a continuing power of attorney for property.

Power of Attorney for Personal Care

A power of attorney for personal care is a document where you name someone to become your attorney to make personal care decisions on your behalf if you become mentally incapable of making those decisions yourself. An attorney is not a lawyer but a person that you trust to make decisions for you when you are not able to do so yourself. Personal care decisions refer to decisions about your health care and medical treatment, diet, housing, clothing, hygiene and safety. A power of attorney for personal care lets you state what you want and what you do not want with respect to your personal care decisions (these are called wishes). For example, if there are certain medical procedures you would not wish to receive, such as blood transfusions, you would specifically state that in your power of attorney for personal care. No decision can be made by an attorney for personal care unless you have been found to be mentally incapable of making that decision.

Continuing Power of Attorney for Property

A continuing power of attorney for property is a legal document that lets you appoint an attorney to make financial and other property decisions for you. An attorney is not a lawyer but a person that you trust to make decisions and manage your property on your behalf. Depending on how the power of attorney is written, your attorney may have authority to: (1) act for you both when you are capable and when you are mentally incapable; or (2) act only when you have been found mentally incapable of managing your property/finances in accordance with the law. In order to ensure the validity of this power of attorney, it must either be called a "continuing power of attorney for property" or it must specifically state that your attorney has been given the right to continue acting for you if you become mentally incapable.

Elder Abuse - Introduction

Elder abuse is harm done to an older person by someone in a special relationship to the older person.

Elder abuse includes:

  • Physical abuse such as slapping, pushing, beating or forced confinement;
  • Financial abuse such as stealing, fraud, extortion or misusing a power of attorney;
  • Sexual abuse as sexual assault or any unwanted form of sexual activity;
  • Neglect as failing to give an older person in your care food, medical attention, or other necessary care or abandoning an older person in your care; and
  • Emotional abuse as in treating an older person like a child or humiliating, insulting, frightening, threatening or ignoring an older person.

Elder abuse can sometimes also be a crime under the Criminal Code of Canada. Examples of possible crimes include:

  • Physical abuse such as assault, assault with a weapon or causing bodily harm, aggravated assault, sexual assault with a weapon, aggravated sexual assault, forcible confinement, murder or manslaughter;
  • Financial abuse such as theft, theft by holding power of attorney, stopping mail with intent, extortion, forgery or fraud; Sexual abuse such as sexual assault with a weapon or aggravated sexual assault;
  • Neglect such as criminal negligence causing bodily harm or death or failure to provide necessaries of life; and
  • Emotional abuse such as intimidation, uttering threats or harassing telephone calls.