Guardianship

Total 84 Posts

What an Attorney for Personal Care Can Do

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In Ontario, a power of attorney for personal care is defined in the Substitute Decisions Act (SDA) and allows the appointed attorney to act as the substitute decision maker (SDM) for an incapable person. The appointed attorney is given the authority to make decisions such as: medical treatments, admission to a care facility, or hiring a personal assistance service. Where there is no appointed attorney for personal care, the Health….

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Capacity Law, Caregiving, Disability, Elder Care, Elder Law, Geriatric Care Management, Guardianship, Healthcare, Power of Attorney, Powers Of Attorney and Guardianship Disputes

Some Thoughts on Explaining Differences in Expert Opinions

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Experts giving evidence in an Ontario court are obliged to sign an acknowledgement that they are independent, with their obligation being to the court and not to the party who retained them. Nonetheless, scepticism regarding objectiveness and discrepancies between expert opinions remains, as demonstrated in the reasons of Justice Mesbur in Plese v. Herjavec, 2018 ONSC 7749: [89]      I have always been tempted to ask valuators whether their opinions would….

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Capacity Law, Elder Law, Family Conflict, Geriatric Care Management, Guardianship, Healthcare, Power of Attorney, Powers Of Attorney and Guardianship Disputes, Testamentary Capacity

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

Statutory Guardianship of Property vs. a Continuing Power of Attorney for Property: They are not the same!

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My June 2017 blog described that most seniors appoint a continuing power of attorney for property (CPOAP), partly to avoid having the Office of the Public Guardian and Trustee (OPG&T) assume the role of statutory guardian of property under the Substitute Decisions Act (SDA) or the Mental Health Act (MHA) should the person become incapacitated. The majority appoint a family member who they assume they can trust. I questioned at….

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Capacity Law, Disability, Elder Care, Elder Law, Fiduciary Professions, Geriatric Care Management, Guardianship, Power of Attorney, Powers Of Attorney and Guardianship Disputes

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
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