Section 6 of the Ontario Substitute Decisions Act (SDA) sets out: “A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” In F.L. v. Oliver, 2024 ONSC 478 the Ontario Superior Court….
When there is any concern that a client cannot capably make their own decisions about their financial or legal matters, it is important for a planning professional to inform their client that a person typically cannot self-identify whether they are incapable to make decisions. That person will need to rely on others to identify whether they are capable or not, so as to protect their interests from harm. Throughout the….
In my capacity evaluation work, my clients (who are mostly lawyers) occasionally suggest that if I have already assessed that a decision maker has testamentary capacity, then I need not evaluate whether the decision-maker has capacity to appoint a power of attorney (POA) for property. The reasoning is that because the threshold for testamentary capacity is higher than any other legal decision-making activity, if the decision-maker has testamentary capacity, then….
The Threshold of Decision-Making Capacity Continue Reading »
UncategorizedThe determination of decision-making incapacity is time, task, and situation specific, and can be quite complex. This complexity is in part caused by a lack of reliability and standardization when it comes to determining capacity. In turn, this lack of reliability and standardization is caused by, among other things: biased or unattainable corroborative information, potential outcomes, risks, social conflicts, and impacts on family or supportive friends. All of these factors….
The Law Society of Ontario’s (“LSO”) Guide to Navigating Client Capacity Concerns (last updated August 14, 2024) is instructive of the responsibility of lawyers and paralegals in Ontario to assess for capacity. As explained in the Guide available online: When a lawyer or paralegal meets with a new or existing client they must consider whether the client has the capacity to provide legal instructions and enter into binding legal relationships…..
Guide to Navigating Client Capacity Concerns Continue Reading »
UncategorizedRecently, an elderly patient suffering from moderate-to-advanced stage dementia, with behavioural complications, was hospitalized on a psychiatric admission. The patient, who was declared incapable to consent to treatment, was initially held involuntarily under the Mental Health Act, RSO 1990, C M.7 (the “MHA”). The patient had appointed a cousin as their attorney for property and personal care. However, the cousin could not be located and there was a concern that….
