Dr. Richard Shulman

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Dr. Shulman is a geriatric psychiatrist at Trillium Health Partners and is an associate professor at the University of Toronto. He is medical director of the Capacity Clinic and available for independent medical-legal capacity assessments.

Undue Influence by “Unwitting Proxy”

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Undue influence results in benefits to a beneficiary/donee which would not have occurred except for the undue influence imposed by the beneficiary/donee upon the testator/donor. Undue influence can be conceptualized into two distinct types: (1) “actual” undue influence and (2) “presumed” undue influence. Actual undue influence is concerned with coercive or deceptive behaviour. As explained by Lord Justice Lindley in the seminal case of Allcard v. Skinner,[i] actual undue influence….

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Capacity Law, Elder Law, Guardianship, Power of Attorney, Powers Of Attorney and Guardianship Disputes, Resulting Trust, Testamentary Capacity, Trustee, Trustee Disputes, Undue influence

When More Help is Needed: Moving Seniors with Dementia to Care Facilities

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Section 4(1) of the Health Care Consent Act (HCCA) sets out a two-part test for determining whether a person has the capacity to consent to medical treatment, to be admitted to a care facility, or to receive a personal assistive service/device: Is the person able to understand information relevant to making the decision; and Is the person able to appreciate the consequences of a decision or lack of a decision?….

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Capacity Law, Elder Care, Elder Law, Geriatric Care Management, Guardianship, Power of Attorney

Medical Assistance in Dying (MAiD) and Undue Influence

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In 2015, the Supreme Court of Canada held that the ban on Medical Assistance in Dying (MAiD) was unconstitutional (for a summary of the decision, click here). However, MAiD is not available to all persons; to qualify, a person requesting MAiD must have a grievous and irremediable medical condition including an illness, disease or disability. In its seminal decision, Carter v. Canada (Attorney General), 2015 SCC 5, the Supreme Court of….

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Capacity Law, Disability, Elder Care, Elder Law, Geriatric Care Management, In the News, Testamentary Capacity, Undue influence

LTCHA Fails to Meet its Mandate for Seniors with Dementia and Responsive Behaviours

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All long-term care homes in Ontario are governed by one piece of legislation: the Long-Term Care Homes Act, 2007 (LTCHA) designed to help ensure that residents of long-term care homes receive safe, consistent, high-quality resident-centred care. The Ontario Regulation 79/10 (Regulation) is made under the LTCHA and provides additional requirements. Section 53 of the Regulation sets out the requirements relating to the care for residents with “Responsive Behaviours,” which are….

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Capacity Law, Caregiving, Elder Care

Assisting Detection of Hospital Acquired Delirium by Informal Caregivers – The Sour Seven

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In the March 2018 edition of Reader’s Digest, I came across an article called “State of Confusion”[i] about hospital acquired delirium and the negative consequences that can arise from it. (The author’s original article can be found online.)[ii] The editor’s letter “Decoding Delirium”[iii] in the same issue recounts her mother’s experience with hospital acquired delirium and her frustration with the delay in coming up with the diagnosis. My fellow blogger,….

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Caregiving, Elder Care, Geriatric Care Management, Guardianship, In the News

Consent to Medical Assistance in Dying vs. Withdrawal of Life-Sustaining Treatment

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The cases before the court of Shalom Ouanounou and Taquisha McKitty[i] focus on the declaration of brain death and the withdrawal of life-sustaining treatment without consent. I will not address the issue of declaration of brain death as that lies outside my scope of practice, but rather will comment on consent issues as they relate to end-of-life decision-making. The law makes clear that consent is a sufficient condition for the….

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