All About Estates

Category: Capacity Law

Total 51 Posts

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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The Law Commission of Ontario Seeks Public Consultation

The Law Commission of Ontario’s (LCO) Improving the Last Stages of Life project released two final research papers ahead of publishing its consultation paper. The LCO’s project examines how Ontario laws are shaping the quality of life of dying people and how end of life care can be improved in…

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When is a Minor a Major or Super Minor and What Does it Mean?

At law, a child under the age of 18 is considered a party under disability (i.e. a “minor”).  As a result, a minor is treated somewhat differently by the courts.  For example, a minor must be represented by a court appointed litigation guardian in civil court proceedings.  In addition, limitation…

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The Ten D’s of Geriatric Psychiatry

In my consulting work, I have provided independent medical/legal assessments of seniors regarding capacity to sign powers of attorney, capacity to manage property and personal care, capacity to marry, capacity to provide instructions, capacity to provide evidence and both retrospective and contemporaneous assessments of testamentary capacity and capacity to provide…

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QUALIFIED DISABILITY TRUST (“QDT”): HOW TO FILE A JOINT ELECTION?

Recently, the Canada Revenue Agency (“CRA”) issued a “how to file” the joint election for a trust to be a QDT: http://www.cra-arc.gc.ca/E/pbg/tf/t3qdt/README.html From 2016 forward, this form is to be used if one or more beneficiaries are jointly electing that the trust be designated to be QDT for the year….

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Can a Drunk Clearly Consent?

By now many are familiar with the story reported in the National Post on March 2, 2017 by Ashley Csanady and the subsequent public outrage and calls for appeal in the Nova Scotia acquittal of a case of alleged sexual assault of a young woman intoxicated in the back of…

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