Capacity Law

Total 144 Posts

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

Privacy, the Rule of Law, and Apotex Inc.

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The “rule of law” is a defining feature of western democracies. Briefly described, it is the insistence that all government action be based in law, and is contrasted with acts of tyranny, dictatorship, and arbitrary exercises of power. The central role that the rule of law plays in Canadian society is most clearly seen in the one-sentence preamble to the Constitution Act, 1982: “Whereas Canada is founded upon principles that….

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Capacity Law, Estate Litigation, Family Conflict, Guardianship, In the News, Interest

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

Hospital-Acquired Delirium

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Delirium is one of the 3  big ‘D’s that we see  with our older clients.  The other ‘D’’s are dementia and depression but I suppose the biggest ‘D’  out there is death. I recently came across a Reader’s Digest article while waiting at a doctor’s office that had been reprinted from The Walrus. The original title is “Why Is No One Talking About Hospital-Acquired Delirium?’  The story describes a bright,….

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Capacity Law, Elder Care

Court Set Asides a Release and Orders a Passing of Accounts

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An estate trustee may decide to forego passing their accounts because of the associated costs and seek a release from the estate’s beneficiaries instead. However, when the capacity of a beneficiary is in question, a  release may be set aside. In Foisey v. Green, the Public Guardian and Trustee (“PGT”) as litigation guardian for Ms. Foisey sought to set aside a release she signed three months before she was found….

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Capacity Law, Estate Administration, Estate Litigation, Passing Of Trustees’ and Executors’ Accounts

Capacity Evaluation of an Expressed Choice

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In law, expressed choices are not necessarily a reflection of capable decision making. For example, regarding testamentary capacity, the Ontario Court of Appeal in Hall v. Bennett Estate (2003)[i] stated in paragraphs 15 and 16 that it is not sufficient simply to show that a testator had the capacity to communicate his or her testamentary wishes. Those wishes must be shown to be the product of a sound and disposing….

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Capacity Law, Elder Care, Elder Law, Family Conflict, Guardianship, Powers Of Attorney and Guardianship Disputes, Spouse
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