Earlier this month, I attended Osgoode PD’s Intensive Program on Will Drafting and the course on Managing Consent & Capacity Issues in a Wills and Estates Practice.  

Intensive Skills Workshop on Will Drafting

This program was chaired by Corina Weigl (of Fasken) with Maureen Berry (of Fasken), Ed Esposto (of Aird & Berlis LLP) and Amanda Stacey (of Norton Rose Fulbright Canada LLP) as faculty members. It focused on the purpose and obligations of the will drafting lawyer as well as the common pitfalls that can arise in the drafting process.

The drafting lawyer’s role is to prepare a document that unambiguously reflects their client’s intentions whilst considering the foreseeable contingencies that may impact the estate. The drafting lawyer is not a mere scribe and is not beholden to their precedents. The will must stand on its own and must be read as a whole, as a matter of interpretation and construct. As such, drafters should follow these best-practices:

• Structure the clauses of the will in sequence to reflect the natural order of estate administration and intended distributions;
• Ensure that the three certainties of a trust are clearly articulated when drafting a testamentary trust;
• Avoid language in the will that inadvertently disposes of the same property twice; and
• Avoid creating an intestacy; and

Managing Consent & Capacity Issues in a Wills and Estates Practice

The program was chaired by Nimali Gamage (of Goddard Gamage LLP) and the faculty was comprised of Laura Cardiff (of Casey & Moss LLP), Brittany Miller (of Goddard Gamage LLP), Judith Wahl (of Wahl Elder Law) and Allana Kaye (designated capacity assessor with A. S. Kaye Consultants). The program’s three segments are summarized below.

 1) Understanding the Health Care Consent Act: Informed Consent and Advance Care Planning

In this first segment, Ms. Wahl clarified the purpose of advance care planning and common misconceptions about this planning that arise in both the legal world and the medical world. In the advance care planning process, a person identifies who they intend to select as their substitute decision maker (“SDM”) as a first step. If no SDM is selected in a legally recognized manner, then medical professionals will follow the hierarchy of persons listed in the Health Care Consent Act, 1996 to obtain direction on treatment decisions. The advance care planning process also involves a capable person discussing with their future SDM their wishes, values, beliefs and how they would like to be cared for in the event of incapacity. The goal is for the SDM to make decisions on behalf of the incapable person that the person would have made if capable. 

2) Dealing with Capacity and Incapacity Issues in the Practice of Law

This second segment was a primer on the various tests for capacity and the lawyer’s obligations in representing a client with diminished capacity or suspected incapacity. Lawyers should be mindful of their obligations under the Rules of Professional Conduct, namely to evaluate the capacity of a potential or retained client throughout the professional relationship. Lawyers should also be prepared to navigate the different tests for capacity: to make property decisions (section 6 of the Substitute Decisions Act, 1992 (“SDA”)); to make personal care decisions (section 45 of the SDA); to instruct counsel; to make a will; to grant a power of attorney for property (section 8 of the SDA) and for personal care (section of 47 the SDA) and to revoke same, and so on.

3) Evaluating Capacity: Roles and Responsibilities of the Lawyer

In this final segment, Designated Capacity Assessor Alanna Kaye provided practical insights on the role of the capacity assessor, and presenter Laura Cardiff provided the lawyer’s perspective on capacity evaluations. Capacity assessors can offer two main areas of assessment: first, a letter of opinion on capacity that falls outside of the SDA; and second, an SDA assessment (i.e. an opinion on whether a person has capacity to make property or personal care decisions for guardianship purposes). In selecting a capacity assessor, lawyers are encouraged to review the potential assessor’s background, training, supervision, and of course, costs. The retainer letter for the capacity assessor should be focused on the goals of assessment and the necessary information that the assessor will need rather than accusations and legal positions.

It was truly a pleasure to attend both of the Osgoode programs and to take away such focused and practical lessons for the practice of wills and estates, whether in litigation or otherwise.

Thank you for reading,

Ashley Naipaul