The recent decision in Lewicki v. Bascus et al., 2025 ONSC 6224 reiterates the duties lawyers and attorneys for property or personal care have to vulnerable persons. Attorneys have a duty to refrain from influencing vulnerable persons with their personal opinions to further their own self-interest. Lawyers have a duty to enforce safeguards when dealing with vulnerable clients to ensure their decisions are independent and rooted in logic.

Lionel Bascus (“Lionel”) is 94 years old and suffers from severe neurocognitive impairment and paranoid ideation. Lionel and his daughter, Del Lewicki (“Del”), shared a close relationship, and Del took good care of her father. In mid-2023, Lionel executed POAs that appointed Del and his neighbour as co-attorney for personal care and Del as sole attorney for property (the “2023 POAs“). The 2023 POAs were supported by a capacity assessment that found Lionel had capacity to make such decisions.

In 2023, Lionel’s sister, Gerda Bascas (“Gerda”), inserted herself back into his life after decades of estrangement. Del and Lionel’s relationship soon began to sour. Lionel had a history of paranoia and delusions, which Gerda only fuelled. Gerda convinced Lionel that Del was stealing from him and trying to sell his Brampton condo (the “Condo”).

On January 9, 2024, Lionel transferred the Condo to Gerda and executed new POAs appointing Gerda as his sole attorney for property and personal care (the “2024 POAs”). The 2024 POAs and the transfer of the Condo were completed by a lawyer named Richard Furlong. Mr. Furlong met with Lionel twice, January 3, 2024 and January 9, 2024. Both meetings totaled one hour, and Gerda attended each meeting with Lionel.

Mr. Furlong did not property assess or interview Lionel. Mr. Furlong knew Lionel was over 90 years old and had dementia but failed to make inquiries regarding Lionel’s capacity or cognition. He did not confirm that Lionel understood that transferring the Condo (valued at $1 million) gave away a significant portion of his $3 million estate. He did not ask Lionel about his other assets and did not inquire whether Lionel would need the Condo to fund his care.  He accepted a joint retainer to act for both Lionel and Gerda. He did not advise Lionel to seek independent legal advice regarding the Condo transfer. The transfer of the Condo to Gerda also departed from Lionel’s Will that left his estate equally to his daughters. Mr. Furlong did not probe Lionel to determine why he wanted to depart from his wishes in his Will to give Gerda a substantial gift that would substantially deplete his estate to the detriment of his daughters.

Del commenced an application to determine whether Lionel had the capacity to transfer the Condo to Gerda or execute the 2024 POAs. Medical evidence suggested that Lionel did not have capacity to do either. A November 2023 geriatric assessment stated that Lionel suffered from neurocognitive impairment and paranoia and required full support in managing his daily affairs, including finances. A capacity assessment conducted on January 26, 2024 (17 days after the Condo transfer) revealed that Lionel did not have the capacity to make a Will or amend his POAs for property and personal care. Another capacity assessment conducted in November 2024 confirmed these findings and stated that between January and November 2024, Lionel was highly vulnerable to influence.

Gerda maintained that Lionel had capacity to execute the 2024 POAs and transfer the Condo. She insisted the January 26, 2024 assessment was unreliable because Lionel was not properly briefed on the assessment. Justice Gilmore noted that due to the suspicious circumstances surrounding the preparation of the 2024 POAs, Gerda had the onus to prove that Lionel was capable during the relevant period.

Justice Gilmore found that Gerda failed to dispute the medical evidence to prove that Lionel had the capacity to execute the 2024 POAs. Notably, much of Gerda’s evidence was self-serving and nonsensical. She transferred her own distrust and opinions of Del onto Lionel. As Lionel was vulnerable to Gerda’s influence and executed the 2024 POAs based on paranoid delusions (which Gerda only fuelled), the 2024 POAs were set aside.

There is a presumption of undue influence in dependent relationships where a gift is given for no consideration. As Lionel depended on Gerda, the presumption of undue influence applied, and Gerda had to rebut the presumption to demonstrate that the Condo transfer was truly Lionel’s decision. Justice Gilmore found that Gerda had not discharged her onus. In addition to transferring the Condo under false pretenses (Del was stealing from him) and his lack of capacity, Lionel did not receive independent legal advice and could not appreciate the consequences of the Condo transfer. The Condo transfer was set aside, and Lionel was restored as its sole owner.

Multiple factors make a person more vulnerable, such as cognitive issues, dependency on another person for financial or emotional support, and isolation from friends or family. Attorneys for property or personal care must be mindful of not inflicting their own opinions of supportive family members onto the incapable or vulnerable individual. Lawyers also have a duty to properly assess clients to ensure they have the requisite capacity to give instructions and that decisions are truly their own. Lawyers are not capacity professionals, but they must enforce some safeguards to ensure that clients are providing sound and independent instruction. Justice Gilmore also stressed that changes to one’s POAs or large gifts must be rooted in logic; these decisions cannot be based on false belief or paranoia. Lawyers must ascertain that this is not the case.