All About Estates

Category: Capacity Law

Total 84 Posts

Concerns about Consent for Cannabis Prescriptions in LTC

Last month I wrote about the issue of consent for CPR, explaining that the Court in Wawrzyniak v. Livingstone confirmed that a physician’s duty is to his or her patient and not the interests of the substitute decision-maker (SDM). Treatments that are not believed to be in the interests of…

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Can You be Removed as a Trustee Without a Replacement?

The recent case of Novak v. McDougall, (2019 SKQB 261), confirms that when you have accepted an appointment to be trustee, you may not be able to have yourself removed from that appointment without a suitable replacement. The applicant in this case, a beneficiary of a “Henson” trust (basically defined…

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New Guidelines on Provision of CPR in Hospitals

The case of Wawrzyniak v. Livingstone, 2019 ONSC 4900 (CanLII) is a landmark decision that readers may find interesting. It clarifies physicians’ obligations with respect to the writing of no-CPR (cardiopulmonary resuscitation) orders and the provision of CPR in Ontario hospitals. The decision has led to the College of Physicians…

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A New Way to Plan for Death

Today’s blog is being brought to you by guest blogger, Jennifer Campbell, a law clerk in the Private Client Services group of Fasken LLP. I recently came across an article talking about death doulas. Yes, you read right, death doulas. While I’ve heard of doulas helping pregnant women come up…

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Trustee’s Personal Liability – It Could Go on for Years!

Take the case of Estate of Ronald Alfred Craymer v Hayward et al, 2019 ONSC 4600, The Craymers were married in the 1980’s. It was a second marriage for Mrs. Craymer and a fourth marriage for Mr. Craymer. At the time of their marriage, Mrs. Craymer had three adult children…

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Power of Attorney Disputes: Effective Capacity Assessments

I was honoured to moderate a panel today at the Advocates’ Society’s CPD today “Capable or Not? How to Effectively Litigate and Mediate a Power of Attorney Dispute” (which will be available for purchase online in a couple of months as a webcast archive at TAS’ website). Justices McEwen and…

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What an Attorney for Personal Care Can Do

In Ontario, a power of attorney for personal care is defined in the Substitute Decisions Act (SDA) and allows the appointed attorney to act as the substitute decision maker (SDM) for an incapable person. The appointed attorney is given the authority to make decisions such as: medical treatments, admission to…

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The Test for Capacity to Give Evidence and Special Accommodations

Section 16 of the Canada Evidence Act (“CEA”)[i] sets out the test for capacity to give evidence: 16(1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry…

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Incapable People and Limitation Periods

When does the limitation period start running regarding an incapable person who does not have a formal litigation guardian? Despite the language of the Limitations Act, 2002, a court found in Rekowski v. Renfrew (County), 2019 ONSC 2852 that the answer to this question is not clear. In 2009, Kenneth was…

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Undue Influence in Estate Planning

This Blog was written by: Alicia Godin, Estate and Trust Consultant, Scotiatrust Historically the area of estates was not particularly litigious, but as families and financial circumstances become more complex, litigation involving estates has become more frequent. Frequently touted, but notoriously difficult to prove, is the allegation of someone being…

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