All About Estates

Capacity Issues – who are you going to call?

Capacity to grant and revoke a power of attorney (POA) for property and personal care and incapacity to manage property and personal care is defined by legislation in Ontario by the Substitute Decisions Act. However testamentary capacity (capacity to make a will) is not defined by provincial legislation.

Assessors from the Ministry the Attorney General can provide formal assessments of incapacity to manage property and personal care that can result in statutory guardianship by the Office of the Public Guardian and Trustee (PG&T). Unless court ordered, the individual has the right to decline the assessment and has the right to appeal a finding of incapacity to the Ontario Consent and Capacity Board.

Therefore, the role of formal Assessors is paramount when pursuing the need for statutory guardianship by the PG&T, or if mandated by a springing POA for property. Otherwise assessments of capacity to appoint and/or revoke a POA by Assessors are merely opinions; there are no formal declarations of incapacity to appoint a POA that result in statutory appointment of the PG&T as a POA since the appointment of a POA does not limit the grantor from still managing their own property or care decisions.

If the individual is seemingly capable regarding capacity to grant a POA, there are no suspicious circumstances, and no controversies within the person’s social circle, then there is no need for a capacity evaluation. The person benefits from the presumption of capacity. The Ministry of the Attorney General provides a booklet containing templates for completing the POA documents and the person simply requires two witnesses at arm’s length from the appointed attorney(s) to complete the POA documents.

For clients wishing to appoint and/or revoke POA documents where there is a real question about capacity, the role of the Assessor is limited to providing an opinion only. The same applies to all physicians and healthcare workers, who are often unaware of the SDA criteria that apply.

For clients that have questionable capacity and who wish to make a will, many Assessors have no training whatsoever in regards to testamentary capacity evaluation and again do not have authority to make formal declarations of incapacity. The same limitations apply to most physicians and health care workers.

Therefore, when it comes to paying for a consultation regarding capacity to appoint POA or testamentary capacity, buyer beware; the opinion is dependent on the consultant’s skills, experience, and knowledge of the applicable medical-legal tests.

The consultant should not be a hired gun to simply provide the opinion that the retaining lawyer is seeking. Be mindful of the words of the famous Rock & Roll sage, Peter Green of Fleetwood Mac, who in the song “Oh Well” (first recorded in 1969 and later covered by many artists including Tom Petty and the Heartbreakers) sang:

“But don’t ask me what I think of you I might not give the answer that you want me to!”

About Dr. Richard Shulman
Dr. Shulman is a geriatric psychiatrist at Trillium Health Partners and is an assistant professor at the University of Toronto. He is medical director of the Capacity Clinic and available for independent medical-legal capacity assessments.

1 Comment

  1. Anne Fountain

    March 2, 2017 - 5:43 pm

    It would be nice for the Provincial Law Societies would change the laws to permit an incapacitated individual to create a Will. This has been done successfully in Great Britain, Australia, and I believe P.E.I. If I recall correctly, Alberta chose not to go forward with it.
    As relatives become more financially responsible for those with disabilities, and their wealth increases through Disability Savings Plans & Trusts, it would be nice to know there is a way to protect those monies upon death.
    This is a subject I have researched and been passionate about; however, have found no one to align with, to assist with the process.

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