By: Maddi Thomas, associate and Sukhman Sangha, articling student Gowling WLG (Canada) LLP

Mental capacity continues to be a growing area of focus in estates law. Capacity, defined under the Substitute Decisions Act, 1992 (“SDA”) as the ability to understand and appreciate decision consequences, is assessed through medical and legal evaluations. Declining capacity heightens vulnerability to financial abuse, such as unauthorized transactions or neglect by fiduciaries like guardians unaware of their duties. The Ontario Superior Court case Francois v. Francois, 2025 ONSC 589 may serve as a warning to those who put off drafting their estate planning documents, and offers lessons for protecting vulnerable individuals and their assets.

Francois v. Francois: A Case Study in Capacity and Procedure

In Francois v. Francois, 2025 ONSC 589, Stephanie Dubuisson (“Dubuisson”) was declared incapable of managing her property for undisclosed reasons in 2012. This led to her then-spouse being appointed as her guardian. In the years that followed, Dubuisson went on to divorce her husband, and in 2025 sought to replace him as her legal guardian. In her view, her estranged ex-husband was no longer suitable to act as her guardian as he was unlocatable in Haiti, prompting her motion to replace him under section 26 of the SDA.

The court considered whether Dubuisson, as a person previously adjudged incapable, could bring a motion to change her guardian without a litigation guardian, and whether she remained incapable of managing her property.

While the court confirmed that Dubuisson had standing to bring the motion (she was a person required to be served in the original guardianship application), the court dismissed her case as she had not obtained an updated capacity assessment. Dubuisson was still considered a “person under disability” and could not act in court without a litigation guardian, as required by Rule 7.01 of the Rules of Civil Procedure.[1] The exception in Rule 7.01(2), which allows applications under the SDA to proceed without a litigation guardian, did not apply because Dubuisson was trying to act as the moving party, not the respondent.

The court was not satisfied that Dubuisson remained incapable of managing her property in 2025, and highlighted that, if she had regained capacity, she could execute a power of attorney instead of requesting a guardianship order. Counsel for Dubuisson argued that a court application would be required to lift the guardianship order, which would result in unnecessary time and expense. In the meantime, it would also leave Dubuisson exposed to potential financial abuse by her ex-husband. Regardless, without a new capacity evaluation, the court found that the 2012 finding of incapacity stood.

The court emphasized the significance of restricting her rights, stating: “The seriousness of depriving someone of their civil rights under such an order cannot be overstated. Courts are very careful to ensure that a person is truly in need of protection before someone else is put in charge of their property and ousts them from making the important financial decisions that affect their lives. It is well-established that the court cannot act simply because it thinks someone is behaving foolishly with their money. People who understand and appreciate what they are doing have the right to autonomy and self-determination”.

Luckily for Dubuisson, no evidence of financial abuse was found despite the absent guardian. However, the outcome leaves Dubuisson in a potentially precarious financial state as her ex-husband could take control over her property as her guardian.

Lessons and Proactive Planning for Estates

To mitigate risks and protect vulnerable individuals and their assets, professionals and testators should consider the following proactive steps:

• Updated Capacity Assessments: Up-to-date and accurate capacity evaluations are essential. Updated assessments ensure guardianship remains necessary, preventing undue restrictions on an individual’s autonomy and aligning with best practices for ongoing oversight.
• Execute a Power of Attorney: Individuals should properly execute a power of attorney while they have capacity. Obtaining legal advice before an individual becomes incapacitated is key to prudently navigating these complexities.
• Preventing Financial Abuse and Mismanagement: While Francois didn’t involve financial abuse, the absent guardian still posed a risk of unintentional mismanagement due to neglect of duties. This concern may apply to attorneys for property as well. Clients should appoint reliable attorneys for property early in the process. This serves to mitigate risks before they arise.
• Addressing Systemic Challenges: Court backlogs can significantly delay guardianship and estate matters, leaving incapable individuals at risk of financial abuse. This underscores the critical need for proactive planning to avoid lengthy and costly litigation. By taking preventative measures, individuals can reduce the risk of disputes and ensure their assets are protected.

These combined proactive steps reduce the risk of disputes and ensure assets are protected, honoring an individual’s wishes and safeguarding their intended legacy. Francois v. Francois, 2025 ONSC 589 underscores the challenges of mental capacity in Ontario’s estates law landscape. By consulting estate planning advisors early, appointing reliable decision-makers, and updating capacity assessments, you can avoid unplanned scenarios like those faced by Dubuisson. Proactive planning ensures your wishes are honored and your legacy safeguarded, even as capacity declines.

[1] 7.01 (1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.  O. Reg. 69/95, s. 2.