Capacity Law

Total 144 Posts

When is a Gift not a Gift?

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Styres v. Martin 2018 ONCA 956 is a case of a gift that unfolded a saga (not over yet and far from it) of diminished capacity, alleged breach of trust, breach of fiduciary duty, unjust enrichment, undue influence to name a few. Mr. Styres lived in a house he built on land given by his father, for about 20 years, when in 1998, he suffered a very serious brain injury….

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Capacity Law, Caregiving, Disability, Estate Litigation, Power of Attorney, Property, Real Estate, Resulting Trust, Trusts, Uncategorized, Undue influence

Some Suggestions on Evaluating Undue Influence in the Court of Public Opinion

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In recent weeks, Canadian politics has been rocked by the so-called “SNC-Lavalin Scandal.” One of the allegations has been whether former Attorney General Jody Wilson-Raybould was pressured or unduly influenced by the Prime Minister’s Office to resolve the corruption and fraud case against SNC-Lavalin in an effort to spare the engineering giant from criminal prosecution. In her February 27, 2019, testimony before the House of Commons, Ms. Wilson-Raybould suggested that….

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Capacity Law, In the News, Undue influence

Understanding the Role of Section 3 Counsel

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The recent case of Sylvester v. Britton, 2018 ONSC 6620 (“Sylvester”) provides an excellent review of the law regarding incapacity, attorneys for property and personal care, capacity assessments, and other issues which often arise in estate/capacity litigation cases. While the decision addresses many interesting points, this blog will focus upon the Court’s analysis of the role played by counsel appointed under section 3 of the Substitute Decisions Act, 1992 (the….

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Capacity Law, Elder Law, Estate Litigation, Family Conflict, Guardianship, Power of Attorney, Powers Of Attorney and Guardianship Disputes

Estate Applied to Have Filings Made by Taxpayer Lacking Mental Capacity Set Aside

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In Ntakos Estate v. The Queen, 2018 TCC 224, a family business was owned by the deceased taxpayer, Anna (after her husband passed away in 1995) with two brothers-in-law through a holding corporation. Anna’s mental and physical health declined from 1995 until her death in 2004. She was diagnosed in 2002 with cancer, and apparently lacked mental capacity after that date. In 2003, the accountant for the family business got….

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Canada Revenue Agency, Capacity Law, Estate Administration, Family Conflict, Investments, Property, Small Business, Spouse, Tax Issues, Testamentary Capacity, Uncategorized

Lucid Intervals and Testamentary Capacity

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As I understand, “lucid interval” is a legal doctrine that holds that testamentary capacity may exist at a moment in time even though the testator’s general state would be inconsistent with the conclusion that he possessed testamentary capacity.[i] The idea is that an individual who suffers from mental illness or a neurological condition may have periods in which his or her ability to reason and make thoughtful choices is preserved…..

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Capacity Law, Contested wills, Estate Litigation, Wills

Year End Wishes for Changes to Care for Patients with Dementia

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Health Quality Ontario, in collaboration with clinical experts, patients, residents, and caregivers across the province, is developing quality standards for care providers in Ontario. I participated in developing the quality standard: Behavioural Symptoms of Dementia: Care for Patients in Hospitals and Residents in Long-Term Care Homes. This quality standard focuses on care for people living with dementia and displaying behaviours of agitation or aggression in an emergency department, a hospital,….

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Capacity Law, Caregiving, Elder Care, Elder Law, Geriatric Care Management, Healthcare
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