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Posts Categorized: Capacity
10 ResultsWho makes decisions for me if I become incapable and have not made plans?
Before COVID-19, many of us had earmarked 2020 as the year we would get our affairs in order, including preparing powers of attorney for personal care and property. Unfortunately we may have not gotten around to it. The pandemic has accelerated discussions about intubation, CPR and end of life care. Additionally, many people, especially those…read more
The Revival of Unconscionable Procurement
The administrations of some estates simply do not move forward smoothly. The Elias Gefen estate is one such estate. In Gefen v. Gaertner, 2019 ONSC 6015, Justice Kimmel addressed multiple issues which had stopped the administration from moving forward, ranging from mutual wills to secret trust agreements. Justice Kimmel also applied, for the first time…read more
The LCO Takes on Dispute Resolution and Legal Capacity
Ontario’s current legislative regime defining legal capacity and setting the rules for substitute decision-making and guardianship took shape in the late 1980s and early 1990s. Since then, significant demographic, legal, and social changes rendered the existing system inaccessible to all but a few. In their March 2017 final report on Legal Capacity, Decision-making and Guardianship…read more
Let’s Talk About Court Ordered Capacity Assessments
Can one’s capacity be assessed against their will? The recent Ontario Superior Court of Justice decision in Erlich v. Erlich, 2018 ONSC 2911 sets out a useful overview for how and under what circumstances a court may order a person to undergo a capacity assessment, be they willing or otherwise. Background Robert Erlich (“Robert”) is…read more
40oz. to Testamentary Freedom
Is the fact that one is a chronic alcoholic enough to deprive them of their testamentary freedom? In Dujardin v. Dujardin, 2018 ONCA 597, the Court of Appeal for Ontario explored this issue when it was tasked with determining the validity of two wills that were executed by a known drunkard. Background Jacques Henry Dujardin…read more
Ere the Son Rises
Ere the Son Rises What is an adult child to do when his or her parent is no longer capable of managing their property? They may, for one, consider applying to the Ontario Superior Court of Justice for the appointment of a Guardian of Property. In Ballinger v. Marshall, 2018 ONSC 3020 (CanLII), a devoted…read more
I Hate to be a Suspicious Aloysius on You – but Did the Deceased Have Testamentary Capacity?
A recent Ontario Court of Appeal decision (Stekar v. Wilcox[1]) reinforces what is required to prove well-established grounds for challenging a will: suspicious circumstance and testamentary capacity. Background Jerald P. McNamara (the “Deceased”) died on June 18, 2012. His friend of over 40 years, Thomas, stood to inherit his entire estate under the terms of…read more
Home? Or a Retirement Home? The Court Must Decide
An elderly woman suffers from dementia. Her two children are both her attorneys for property and personal care. Both have diametrically opposed plans for where she would live. In Walter Burnat v Mary Bosworth et al, 2016 ONSC 2607 (S.C.J.) the court had to decide whether the mother – Olga – would continue to live…read more
Nova Scotia repeals “habitual drunkard” law
Until earlier this month, Nova Scotia had a statute on the books called the Inebriates’ Guardianship Act, R.S.N.S. 1989, c. 227 which allowed for the court to appoint a guardian over a “habitual drunkard”. While Nova Scotia has other statutes which allow the Court to appoint a guardian for a person found to be incapable,…read more
Can Late-Stage Alzheimer’s Patients Change Their Minds About Their Care?
The British Columbia Court of Appeal recently released its decision in Bentley v. Maplewood Seniors Care Society. The closely watched case involved a late-stage Alzheimer’s patient who was supposedly “consenting” to being fed. Her “consent” consisted of opening her mouth when a spoon or glass was placed on her lower lip. The case raises difficult…read more