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Posts Tagged: Capacity Litigation
9 Results(In)Capacity to instruct counsel
July 25, 2023 In the world of estate litigation, an issue that frequently arises is the capacity of an elderly individual to create a will or execute a power of attorney. As is widely known, there are different levels of capacity required for an individual to carry out different tasks; the highest level of capacity…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
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
Conflict of Laws and Guardianship
Cariello v. Father Michele Perrella 2013 ONSC 7605, a guardianship proceeding heard by Justice Mesbur, is a poignant read, particularly at this time of year when people oft-express a desire to go “home for the holidays”. Born in Italy in 1933, Fr. Perrella became an ordained priest in the Roman Catholic Church and he was “incardinated”…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
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