Capacity Law

Total 144 Posts

What Happens When a Shareholder Party to a Transaction Becomes Incapable; Powers of Attorney for Property and Due Diligence Tips

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This is Part III of my saga on incapacity planning in a corporate context. Part I and Part II can be found respectively at: https://allaboutestates.ca/powers-of-attorney-for-property-implications-of-obtaining-a-formal-capacity-assessment/, and https://allaboutestates.ca/what-happens-when-a-shareholder-voting-or-a-director-becomes-incapable-powers-of-attorney-for-property-and-shareholder-agreement-drafting-tips/. As a reminder, Part II addressed two situations that we, as estate planners, are commonly asked about: A director becomes incapable – who can sign for them? A shareholder (voting) becomes incapable – who can attend to governance regarding electing directors and officers….

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Capacity Law, Estate Administration, Estate Planning, Power of Attorney, Property

What Happens When a Shareholder (Voting) or a Director Becomes Incapable; Powers of Attorney for Property and Shareholder Agreement Drafting Tips

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This is Part II of my saga on addressing circumstances of incapacity, Part I can be found at: https://allaboutestates.ca/powers-of-attorney-for-property-implications-of-obtaining-a-formal-capacity-assessment/. Part II, being this blog post, addresses two situations that we, as estate planners, are commonly asked about: Director becomes incapable – who can sign for them? Shareholder (voting) becomes incapable – who can attend to governance regarding electing directors and officers and what can be considered at the shareholder agreement….

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Capacity Law, Estate Administration, Estate Planning, Power of Attorney, Wills

Testamentary Capacity and Expert Reports

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As many well know, issues relating to testamentary capacity are often at the forefront of estate litigation cases and in particular, will challenges. Drafting solicitors may opt to obtain a contemporaneous capacity assessment before their clients execute a last will and testament; this may be the case where the testator is older or has cognitive limitations, and/or when there are known family conflicts and an anticipated will challenge. In addition,….

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Capacity Law, Courts, Estate Litigation, Undue influence, Wills

Capacity to Consent to MAiD: A Suggestion For Amendment

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I have found it uncommon for a family member or beneficiary to exert undue influence to pressure a patient to pursue MAiD. What worries me is the vulnerability of patients to undue influence from physicians who may embrace therapeutic nihilism and bias patients unduly towards MAiD. I suggest that, for capacity to consent to MAiD, the test of “ability to appreciate” should be expanded to require an appreciation of the views and wishes of supportive family members and friends…..

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Capacity Law, Disability, Elder Care, Elder Law, Estate Planning, Family Conflict, Healthcare, In the News, Medical Assistance in Dying, Power of Attorney, Spouse, Succession Planning, Testamentary Capacity, Undue influence

Capacity to Retain and Instruct Counsel

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Estate litigation cases often impact upon persons who are incapable. In particular, an individual may be incapable of, among other things, managing their property or personal care, of making a will (testamentary capacity) and of retaining and/or instructing counsel. The recent case of Guardian Law Group v. LS, 2021 (“Guardian”) reviews the requirements that must be met by counsel to be validly retained to represent an individual. In Guardian, the….

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Capacity Law, Contracts, Estate Litigation, Retainer Agreement

Role of the Health Practitioner at Board Hearings: Recommendation for Reform

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The Consent and Capacity Board (“Board”) in Ontario is a quasi-judicial administrative tribunal which operates at arm’s length from the Ministry of Health. The Board convenes hearings and makes decisions under six pieces of legislation, but most hearings relate to the Health Care Consent Act (HCCA) and the Mental Health Act (MHA). According to the Board’s website,[i] over 5,200 hearings were convened in the 2019/2020 fiscal year. Applications to the….

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Capacity Law, Courts, Disability, Guardianship, Healthcare
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