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Posts Categorized: Capacity Litigation
10 ResultsNo Undue Influence, Says Court of Appeal
Rita and her late husband Frank built a successful business together in the course of their lengthy marriage. Unfortunately, there is a struggle between Rita’s twin sons (both named Jean) over who should act as their mother’s attorney for property, devastating both the family’s finances and relationship. The Court of Appeal dismissed an appeal 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
Aging Population Brings Greater Risk to Guardianship System
An article last month in the Wall Street Journal entitled “Abuse Plagues System of Legal Guardians for Adults” noted a variety of complaints across the United States about guardians of property and personal care. In one nightmarish story, 71-year old Linda McDowell’s former housemate and companion helped file a court petition, unbeknownst to Ms. McDowell, seeking…read more
An Unwelcome Guest – Guardian of Property Obtains a Writ of Possession
In 1998, Ms. Tollis was declared incapable of managing her property. In the same year, the Public Guardian and Trustee (the “PGT”) became her statutory guardian of property. Ms. Tollis held an interest in a house along with her brother, Mr. Tollis. The interest in the house was Ms. Tollis’ primary financial asset. Shortly before…read more
Mickey Rooney’s Estate and Shedding Light on Financial Elder Abuse
It is not surprising that Mickey Rooney’s estate may become embroiled in litigation. Mr. Rooney was married nine times; he was survived by a number of children and stepchildren, and was estranged from his current wife at the time of his death. Such full lives often lead to complicated estates. More troubling was that shortly…read more
When A Custody Battle Turns into Competing Guardianship Applications
In a recent Ontario case, divorced parents each sought sole guardianship of their mentally incapable adult daughter. The parents, who divorced in the 1980s, were unable to work together as joint guardians of their 42 years old mentally incapable daughter (“Isabella”). While both parents, who are now in their 70s, agreed that it would be ideal…read more
When Will A Court Order a Mental Examination?
In what circumstances will a court order a plaintiff to undergo a mental examination to determine whether she is a party under a legal disability who has to be represented by a litigation guardian? This was one of the issues for the court to determine in the recent Ontario case of 626381 Ontario Limited et al….read more
If There is a Valid POA, the Court Cannot Order a Guardianship
The recent decision in Lehtonen v. Neill serves as a useful reminder of the sometimes overlooked subsection 22(3) of the Substitute Decisions Act. This provision prohibits the court from appointing a guardian where the court is satisfied that decision making for the incapable person can be met by a less intrusive means. It says: The Court shall not…read more
Powers of Attorney – Ensuring Access to a Loved One
In our rapidly aging society, powers of attorney for personal care and property are now widespread and their importance is recognized by the general public. A family member or friend can also apply to the court to be appointed guardian of the person or the person’s property if powers of attorney have not been executed. …read more
Assessing Testamentary Capacity
An article was published in the American Journal of Psychiatry in May 2007 and can be found at www.ajp.psychiatryonline.org. Among other things, the article considered the common cognitive screening tests used by the medical profession to assess testamentary capacity. By way of introduction, the article states: Clinicians and legal experts must understand that cognitive tests…read more