Capacity Law

Total 144 Posts

Barriers to Communication Masked as Symptoms of Incapacity – A Reminder

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Last week, in my blog entitled “Red Flags of Incapacity”, I mentioned that certain barriers and physical changes associated with aging can be mistaken for signs of incapacity. As professionals, we need to be able to separate these from actual signs of incapacity, and work to reduce or eliminate their effect as much as possible. These barriers include vision impairment, hearing impairment, and the beginning stages of dementia.  As people….

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Capacity Law, Elder Law, Estate Planning

When to Serve the Public Guardian and Trustee

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The Office of the Public Guardian and Trustee has multiple functions and involvement in a diverse range of legal proceedings. Most estate practitioners are familiar with the requirements that the Public Guardian and Trustee be served with applications to appoint guardians of property and person and for court approval of settlements involving a person under a disability. However, there are a number of other statutory requirements that necessitate service on the Public Guardian and Trustee that estate practitioners may be less familar with…..

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

Coffee, Bicycle, Purse

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There is no global test for capacity. Capacity is a task specific concept. The threshold capacity for making a Will is not necessarily the same as may be required for managing a simple bank account or for providing investment instructions in respect of a multi-million dollar portfolio. What should we be looking for when dealing with older clients wishing to prepare a Will?….

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Capacity Law, Estate Planning, U.S. Citizen, United States, US Taxes

Newell v. Newell: Full Indemnity Costs Awarded to Both Parties

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In Newell v. Newell (2011 ONSC 3228), the court awarded full indemnity costs to both parties to a guardianship dispute, despite the fact that neither party was wholly successful and the application and cross- application had become moot as a result of the death of the incapable mother…..

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

Presumption of Capacity and Duty of a Solicitor

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A person who is over the age of 18 is presumed to be capable of entering into a contract, and the rest of the world is entitled to rely upon this presumption unless they have reasonable grounds to believe otherwise. However, the court in England was recently asked the question of whether a solicitor dealing with an elderly person had “no reasonable grounds to suspect incapacity”; to prove the negative and to set a standard with respect to the issue of contemporaneous notes.
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Capacity Law, Elder Care, Elder Law, Estate Litigation, Family Conflict
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