All About Estates

Category: Capacity Law

Total 108 Posts

What Happens When a Shareholder Party to a Transaction Becomes Incapable; Powers of Attorney for Property and Due Diligence Tips

This is Part III of my saga on incapacity planning in a corporate context. Part I and Part II can be found respectively at: https://www.allaboutestates.ca/powers-of-attorney-for-property-implications-of-obtaining-a-formal-capacity-assessment/, and https://www.allaboutestates.ca/what-happens-when-a-shareholder-voting-or-a-director-becomes-incapable-powers-of-attorney-for-property-and-shareholder-agreement-drafting-tips/. As a reminder, Part II addressed two situations that we, as estate planners, are commonly asked about: A director becomes incapable – who…

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What Happens When a Shareholder (Voting) or a Director Becomes Incapable; Powers of Attorney for Property and Shareholder Agreement Drafting Tips

This is Part II of my saga on addressing circumstances of incapacity, Part I can be found at: https://www.allaboutestates.ca/powers-of-attorney-for-property-implications-of-obtaining-a-formal-capacity-assessment/. Part II, being this blog post, addresses two situations that we, as estate planners, are commonly asked about: Director becomes incapable – who can sign for them? Shareholder (voting) becomes incapable…

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Testamentary Capacity and Expert Reports

As many well know, issues relating to testamentary capacity are often at the forefront of estate litigation cases and in particular, will challenges. Drafting solicitors may opt to obtain a contemporaneous capacity assessment before their clients execute a last will and testament; this may be the case where the testator…

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Capacity to Consent to MAiD: A Suggestion For Amendment

I have found it uncommon for a family member or beneficiary to exert undue influence to pressure a patient to pursue MAiD. What worries me is the vulnerability of patients to undue influence from physicians who may embrace therapeutic nihilism and bias patients unduly towards MAiD. I suggest that, for capacity to consent to MAiD, the test of “ability to appreciate” should be expanded to require an appreciation of the views and wishes of supportive family members and friends.

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Capacity to Retain and Instruct Counsel

Estate litigation cases often impact upon persons who are incapable. In particular, an individual may be incapable of, among other things, managing their property or personal care, of making a will (testamentary capacity) and of retaining and/or instructing counsel. The recent case of Guardian Law Group v. LS, 2021 (“Guardian”)…

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Role of the Health Practitioner at Board Hearings: Recommendation for Reform

The Consent and Capacity Board (“Board”) in Ontario is a quasi-judicial administrative tribunal which operates at arm’s length from the Ministry of Health. The Board convenes hearings and makes decisions under six pieces of legislation, but most hearings relate to the Health Care Consent Act (HCCA) and the Mental Health…

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Dementia, Health Law and Discharge Planning Challenges

A clinical dilemma: a patient was diagnosed with dementia in the mild-to-moderate stage requested to be discharged home from hospital to live alone despite the opinion of the attorney for personal care and property that the patient is unsafe to do so. The clinical opinion was also that the patient…

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Increase In House Value Means $1.4 million Gift to SPCA

For many people who own the house in which they live, their home is the most valuable asset in their estate. In many communities in Canada, house values have steadily increased over the last several years and particularly during the COVID-19 pandemic. This means that the value of an estate…

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#FreeBritney: Toxic, Conservatorships, and Guardianship Abuse

This blog was written by Raluca Gondor You may know Britney Spears for her hit songs like Piece of Me, Toxic, and Criminal. But lurking behind a wildly successful career is a darker aspect of her life, one that may be foreshadowed by her song titles: Britney Spears’ conservatorship. Since…

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Changes to Consent to Medical Assistance in Dying

Changes to MAiD laws will allow some patients whose deaths are foreseeable to provide advance directives regarding medical assistance in dying.

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