Legal Rights of Older Adults in Congregate Living and Care Facilities

There were almost 5 million adults 65 years of age and older living in Ontario and other provinces throughout Canada according to the Census of Populationcompleted in 2011. Most of them, about 92 percent, lived in private households. Data from the same census showed the percentage of older adults moving into congregate living facilities increased as people got older. This transition in living arrangements brings with it new legal issues for older adults.

What is congregate living or congregate care?

Congregate living generally refers to facilities offering older adults the opportunity to reside in private, separate apartment-style units with shared activities available to residents. Examples of some of the available resources for congregate living include:

• Senior condominiums and apartments
• Retirement homes
• Assisted living facilities
• Nursing homes
• Acute care facilities
• Hospice facilities

There are a number of legal protections available to older adults residing in congregate facilities in the province. Each one has its strengths and weaknesses depending upon a variety of factors and circumstances.

Protecting older adults through civil litigation

There are more than 600 long-term care facilities in Ontario ranging in size from 10 beds to 472 beds.  If a resident is injured at one of them, he or she might have the right to file a lawsuit seeking civil damages. Negligent conduct on the part of a congregate care facility’s ownership, management or staff can entitle the injured party to compensation.

When a congregate living facility fails to provide the services and level of care for which a resident contracted, a lawsuit for breach of contract could offer a remedy. Unfortunately, an older person might not be physically or mentally capable of asserting his or her rights against a facility. The responsibility for protecting the interests of residents who are unable to fight on their own behalf frequently falls upon friends and family members.

The best course of action for someone pursuing a claim in civil court against a congregate living facility is to seek guidance and legal advice from a lawyer with experience handling such cases and who is familiar with the laws in Ontario. For example, the province does not permit wrongful death claims on behalf of someone whose death was caused by negligence. The family of the deceased might, however, be able to file a lawsuit, referred to as a derivative action, under the Family Law Act.

Pursuing criminal charges on behalf of someone in congregate care

Among the criminal offences to which older adults fall victim are the following:

• Theft
• Theft by a person in a position of trust
• Extortion
• Fraud
• Assault
• Sexual assault
• Elder abuse

Changes in an older person’s personality or signs of physical injury should be reported to the individual’s physician or to the police.

Ensuring proper medical care for older residents

The Health Care Consent Act is one law enacted in Ontario to protect the rights of its elderly residents. One key provision of the law requires informed consent to medical care and treatment before it is administered to a person. The Substitute Decisions Act calls for consent to be obtained from someone acting as a substitute decision maker when the patient is unable to consent.

Injuries caused by procedures, care or medications administered without the requisite informed consent could create the basis for a lawsuit against the physician and facility. Again, in cases in which the elderly person is unable to pursue the claim, it is up to the individual’s family to do so.

Issues associated with congregate living require trusted legal representation

The lawyers at Diamond and Diamond have experience handling all types of personal injury cases, including those arising in congregate living facilities. Call our 24/7 personal injury hotline at 1-800-567-HURT or visit our website to speak to one of our team members. We have offices located throughout Ontario and offer free consultations and case evaluations.