M. Jasmine Sweatman and Bethany J. Anderson wrote an interesting paper focusing on capacity assessments, presented at Beyond Will and Estate Planning Essentials held on May 10, 2011 by the Ontario Bar Association.
They addressed the two broad categories of capacity assessment: those undertaken pursuant to statutory authority, and those commissioned privately. The Substitute Decisions Act (“SDA”), the Mental Health Act (“MHA”) and the Health Care Consent Act (“HCCA”) provide for statutory capacity assessments. As the authors note, very significant consequences can arise under these kinds of assessments. For example, if found incapable to manage property by an assessor under the SDA or if a certificate is issued by a physician under the MHA with respect to an in-patient of a psychiatric facility, the result is the nearly automatic appointment of the Public Guardian and Trustee (“PGT”) as the person’s statutory guardian of property.
That said, the PGT can be replaced as the statutory guardian of property upon a successful application by: (a) the incapable person’s spouse or partner; (b) a relative of the incapable person; (c) the incapable person’s attorney under a continuing power of attorney, with certain restrictions; or (d) a trust company.
In contrast, privately commissioned assessments that conclude the person is incapable of managing their property may not automatically deprive the person of decision making ability. The assessor retained is chosen, and the lawyer and client have the discretion to determine who performs the assessment as well as the scope of the assessment. The authors point out that the assessment in these cases can serve to protect both the client and the lawyer, and can establish the client’s capacity at a particular point in time.
In our practice we see on occasion that testators are assessed just prior to making a new Will, which can be a particularly good idea if a challenge to the validity of the Will is anticipated after death.
Have a good day,
Natalia R. Angelini – Click here for more information on Natalia Angelini.