Written on February 25, 2016 – 6:00 am | by Dr. Ken Shulman
I write as a clinician directed by case law or statutory law when assessing the capacity of a testator or an individual executing Powers of Attorney. The criteria set out in case law (Banks v Goodfellow) for testamentary capacity have traditionally been weighted toward the notion of “what” the testator knows about their assets and their potential beneficiaries. To be fair, there is a provision (somewhat vague) about the appreciation of the claims of potential beneficiaries. Similarly, the criteria identified in the Ontario Substitute Decisions Act (SDA) for capacity to make a Power of Attorney for Property or Personal Care, are weighted towards the responsibilities of an attorney and what they can or cannot do. They do not explicitly address the “who and why” of the choice of attorney(s).
Yet most often, a request for a capacity assessment revolves around a dispute or concern about the choice of attorney or beneficiaries. Hence, especially in circumstances when a significant change from a prior legal document(s) is being proposed, or a there is a dramatic departure from previously expressed wishes, a clear consistent rationale for that change should be probed and documented. Can the individual express an independent rationale for their choice(s), especially in the face of conflict and competing pressures within that individual’s environment? Very often the spectre of undue influence is at play. Perhaps it is because the law separates the question of undue influence from capacity per se that there has been an emphasis on “what”. However, a rationale for “who and why” would go a long way in averting costly (both in emotional and financial terms) legal disputes about capacity and undue influence. Unfortunately, in circumstances which are conflictual, this often not explored or documented. Shouldn’t there be an explicit criterion that includes the ability to provide a clear, consistent rationale for choice of beneficiary or attorney as one of the essential elements for testamentary capacity and capacity to make a POA, particularly when a significant change is being proposed ? Just saying…………….