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Self-determination doesn’t stop with incapacity, experts say

March 2012

A daughter is reluctant to speak to her mother about important issues for fear of upsetting her. A bank calls a senior’s social worker without first checking with the client. A judge doesn’t want to trouble a hard-of-hearing lady by repeating a question, saying, “It’s OK madam,” even though it means she is denied the chance to speak.

These scenarios, cited by Elder Law practitioner Ann Soden, Ad.E., illustrate that even well-meaning professionals can inadvertently violate the rights of the person they are seeking to protect.

Speaking at last month’s Conference on Elder Abuse organized by the Elder Abuse Help-Line, and the Centre of Research and Expertise in Social Gerontology of the CSSS Cavendish, Soden stressed that it is important for a senior in need of assistance to be part of the conversation concerning his or her future. “Listening to the other party is primordial,” Soden said. “I never had a client who didn’t accept [help] if they felt respected.”

Soden, with her McGill law students, created the Centre for Aging and the Law, Canada’s first Elder Law clinical course for future lawyers, in 2007.

In an interview, she said professionals from social, legal and medical areas must work together to have a common understanding of all the issues from diverse disciplines. “Everyone is doing their best but there is a great lack of understanding and information about many of the legal rights which underpin social and medical issues.”

Ageism is a factor, she says. “The vast majority of long-lived people never have problems, there are people working into their 80s. But there is a very generalized view of older people as incapable. When there is confusion, there is a protective layer that overrides respect of the person’s capacity.” A person’s capacity, even if diminished and residual, can last the rest of their life and should be harnessed and promoted, Soden says.

She explains that the concept of having legal representation should be clearly defined to legal representatives. Acting as a mandatary, tutor or curator doesn’t mean the power to decide for a person. It means the duty to advocate his or her wishes, preserve autonomy and to assert the right of the person to speak. If the person can’t speak, for example because they are ill, the next duty is to find out what the person would have wanted, given his or her values, beliefs and lifestyle. This may mean waiting until a lucid moment when the person can communicate. If this is impossible, then it is important to consult with family and professionals to find out what the person would have wanted.

“Only when none of these is possible should professionals and legal representatives advocate based on what ‘a reasonable person’ would want.”

In 1993, the author of The Feminine Mystique, Betty Friedan, foresaw the consequences of living longer and its downside, ageism. In,The Fountain of Age, she writes, “To guarantee our ability to control our own aging and to get the minimum health care we may need, we may have to fight the very proposals seemingly offered to ‘protect’ us.”

In her law clinic as well as her paid practice, Soden empowers her clients with knowledge, because the more informed they are, the more they can help themselves and those there to help them. “Because they are knowledgeable, they help me,” Soden says. “They pose some very good questions and make excellent suggestions.”

As medical researchers turn to- ward personalized medicine and clinical caregivers like Teepa Snow promote client-centred care, there is a shift within disciplines away from a one-size-fits-all approach. This is happening within the legal arena as well, with Elder Law, a field of practice and of law recognized by the Canadian Bar Association in 2002.

“There is a new attitude that is sweeping the world,” Soden says. “It is supportive decision making— a different mindset about what it means to represent and protect someone with diminished capacity. Most people have a level of ability and of functioning that should be defined. Areas of capability are rarely described, yet these are the rights of people and we cannot give less.”

The Centre for Aging and the Law: 514-289-9198. For more legal information, visit



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