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.
Robert Erlich (“Robert”) is the applicant in this case.
The respondents, Srul Erlich (“Srul”) and Tamara Erlich (“Tamara”), are Robert’s parents and are 93 and 95 years old, respectively. Srul and Tamara married in 1972 and raised four children together, including Robert.
Srul and Tamara each have powers of attorney for personal care and property, with each naming the other as attorney with Robert as the alternate.
While Srul and Tamara were enjoying their twilight years in a retirement home, Robert began to raise questions about his parents’ ability to manage their property. Such property consisted of a house owned by an irrevocable trust, bank deposits worth approximately $250,000.00, and a cottage which Srul and Tamara owned indirectly through share ownership.
Robert pointed to the following, among other issues, as reasonable grounds for questioning his parents’ capacity:
– the decline over the last few years of Srul and Tamara’s cognitive status and health;
– Srul’s change in behaviour, from a seemingly normal relationship with Robert to one of paranoia, suspicion, and anger towards Robert; and
– Srul and Tamara’s choice of retirement homes.
Robert was concerned enough to commence an application and sought orders requiring Srul and Tamara to undergo capacity assessments. Robert also sought an order prohibiting Srul and Tamara from dissipating or disposing of their property.
Srul and Tamara, and perhaps quite understandably, opposed Robert’s application. To that end, and in addition to filing numerous medical records and records from their retirement home, Srul filed three capacity assessments conducted by a Dr. Silberfeld that dealt with Srul’s capacity to instruct counsel, make a will, and manage his property and give powers of attorney for personal care and property. Srul underwent these capacity assessments voluntarily after Robert commenced his application. Ultimately, Dr. Silberfeld concluded that Srul was capable of managing his property and noted that “[Srul] is able to understand information that is relevant to making a decision in the management of his property. He is able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.”
For his part, Robert filed a medical report from a Dr. Shulman which responded to and strongly criticized Dr. Silberfeld’s assessments.
Justice Pattillo began his analysis by reminding the reader that section 2 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) provides that a person is presumed to have capacity. The court’s authority for ordering a capacity assessment is set out in section 79 of the SDA and that section requires that the capacity of the person sought to be assessed must be in issue and that there must be reasonable grounds to believe that said person is incapable.
The parties agreed that the factors that the court should consider and balance when determining whether to order a capacity assessment are set out in Abrams v. Abrams, 2008 CanLII 67884 (ON SC) (“Abrams”). Apart from the terms set out in section 79 of the SDA, then, the court must also consider and balance the following:
a) the nature and circumstances of the proceedings in which the issue is raised;
b) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
c) if there has been any previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
d) whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;
e) whether the assessment will be necessary in order to decide the issue before the court;
f) whether any harm will be done if an assessment does not take place;
g) whether there is an urgency to the assessment; and
h) the wishes of the person sought to be examined, taking into account his or her capacity.
As per Abrams, in considering whether to order an assessment, a court must balance the affected person’s fundamental rights to dignity and privacy, as well as that person’s legal rights, against the court’s duty to protect the vulnerable.
With regard to the dueling medical opinions, Justice Pattillo ultimately accepted Dr. Silberfeld’s conclusions concerning Srul’s capacity. While his Honour did respect and acknowledge the expertise of Dr. Shulman, he was not prepared to discount or disregard Dr. Silberfeld’s opinions on the basis of criticisms of the way in which Dr. Silberfeld conducted his assessments. As his Honour noted, the questions Dr. Silberfeld asked and the tests he performed were sufficient to enable him to come to his opinion.
Regarding Robert’s aforementioned reasonable grounds for questioning his parents’ capacity, Justice Pattillo addressed these in turn. First, his Honour held that Srul’s anger towards Robert was simply a reaction to what Srul viewed as Robert’s increasingly controlling behaviour. Second, Robert’s concerns over Srul and Tamara’s choice of retirement home were found to be related more to Robert’s issues such as the location of the residence than to any concerns for the welfare of his parents. Lastly, and with regard to Srul and Tamara’s health, while it was acknowledged that their health had declined over the years, his Honour concluded that the evidence before him did not establish that there were issues with either Srul or Tamara’s capacity.
All told, Justice Pattillo, and on considering the evidence and on balancing all of the factors set out above, was satisfied that neither Srul nor Tamara should be required to undergo a capacity assessment or be restrained from dealing with their property. Accordingly, Robert’s application was dismissed and Srul and Tamara were free to return to enjoying their retirement.
Under the right circumstances, a court can indeed compel one to undergo a capacity assessment. Now you know, and knowing is half the battle.