All About Estates

Category: Capacity Law

Total 56 Posts

Capacity Evaluation of an Expressed Choice

In law, expressed choices are not necessarily a reflection of capable decision making. For example, regarding testamentary capacity, the Ontario Court of Appeal in Hall v. Bennett Estate (2003)[i] stated in paragraphs 15 and 16 that it is not sufficient simply to show that a testator had the capacity to…

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The SDA and Incapacity to Manage Personal Care – Additional Commentary on Limitations in Legislation

Pursuant to Section 45 of the Substitute Decisions Act (SDA),[i] incapacity for personal care is defined as – A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter,…

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The Message is Loud But Not So Clear

Last week, a Washington Post article caught my eye ‘A Florida man collapsed with a ‘Do Not Resuscitate’ tattoo. Doctors didn’t know what to do’. The full article in the New England Journal of Medicine  described doctors in Miami who found themselves caught in what they describe as an usual ethical…

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The SDA and Incapacity to Manage Personal Care – Another Example of a Limitation In Legislation

A frequent clinical challenge for doctors caring for seniors in hospitals is assessing decision making capacity and discharge planning. The following question arises; “Doctor, is the patient ‘capable’ to return home?” The problem with this question is the doctor has no authority in determining the answer. As per Section 45…

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Determining Capacity. They Actually Have An App For That!

I had the pleasure of attending a very interesting presentation on ‘Legal Capacity Assessment Panel Discussion & Technology Demonstration’ that may very well change the face of estate litigation by addressing the question of whether the individual was capable at the time of signing legal documents. I am involved in…

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Removing an Joint Attorney for Property: A High Evidentiary Threshold

Mere disagreement among joint attorneys is not enough to have one attorney removed from their role. A court will defer to the choice of attorney(s) made by the guarantor before they became incapable.  A party requires strong and compelling evidence of misconduct or neglect to remove an attorney. In White…

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The HCCA and Presumption of Capacity to Consent to Treatment; Principled but Flawed

Capacity to make treatment decisions in the Health Care Consent Act (HCCA)[i] refers to an intact ability to understand information that is relevant to making a decision to a proposed intervention and equally important the ability to appreciate the reasonably foreseeable consequences of a decision or a lack of decision….

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What Gets Your Spidey Sense Tingling?

If an older individual was brought to your law office by a non family member and they wanted to appoint the individual as POA for Property and Personal Care, would you be suspicious?  Or what about if the request was to either change a will or to make a will,…

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Capacity Assessments and Biases to Beware of

Capacity assessments regarding capacity to manage property, testamentary capacity or capacity to appoint a power of attorney for property (POA), whether conducted contemporaneously or retrospectively, rely upon whatever materials/information that is provided to an assessor to review. Materials may include relevant medical records, previous wills and POA documents, interview of…

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My Best Interests, and Yours Too?

The recent case of Tarantino v. Galvano, 2017 ONSC 3535, raises a variety of issues familiar to estate litigators – powers of attorney, capacity, quantum meruit claims, the duty to account and the rules surrounding the removal of an estate’s executor. In this case the deceased, Rosa Filippo Galvano (“Rosa”) had…

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