There is an ongoing debate about the ideal decision-making model for individuals with diminished capacity, especially those with dynamic impairments, such as progressive Alzheimer’s disease. Recently, supported decision-making has gained attention as a viable option. In their paper, Andrew Peterson, Jason Karlawish and Emily Largent propose a three-step supported decision-making process that involves identifying domains for support, specifying necessary types of support, and creating a mutually acceptable and formal agreement between the individual with diminished capacity (the “beneficiary”) and the person who agrees to assist the beneficiary in making their own informed decisions (the “supporter”).
Supported decision-making may be used for estate planning. However, supporters must be mindful not to engage in substitute decision-making. In Ontario, the Substitute Decisions Act, 1992, SO 1992, c 30 (the “SDA”) strictly limits the testamentary powers of substitute decision-makers. Subsection 31(1) allows guardians of property to do anything on the incapable person’s behalf with respect to property that the person could do if capable, besides make a will. There is a fine line between supportive and surrogate decision-making. Clear examples of support include attending meetings with the beneficiary and re-explaining relevant facts when the beneficiary is making a decision. However, the boundary blurs once supporters become involved in the substantive aspects of estate planning, such as discussing with the beneficiary how they want to divide up their assets. While engaging with family and friends is a common practice, persons with diminished capacity face a greater risk of being influenced by the opinions of others. To promote a beneficiary’s testamentary autonomy, and prevent any violations of the SDA, supporters must ensure they do not make any estate planning decisions for the testator or impose their beliefs about what they consider to be a fair and appropriate asset allocation.
The law regarding the delegation of testamentary power varies across Canada, so supported estate planning may raise fewer concerns in other provinces. For instance, New Brunswick permits the delegation of the authority to create, alter or revoke a will. Part 3 of the Supported Decision-Making and Representation Act, SNB 2022, c 60 allows the appointment of supportive decision-makers. Under subsections 24(4)(a) and 21(4)(b), a supported decision-making order may expressly authorize the supporter to make, amend, or revoke the beneficiary’s will. To ensure the testator’s true wishes are reflected, subsection 44(1) requires a supporter to discuss the available options and the testator’s wishes and preferences before making any decisions on their behalf.
Supported estate planning also has implications for litigation. Given the blurred distinction between supportive and surrogate decision-making, the validity of a will created with the assistance of a supporter may be challenged. By including information about the domains and necessary types of support required, the agreement between the supporter and beneficiary may help the court understand the parameters of the supported decision-making relationship and provide evidence of the testator’s level of capacity at certain points in time. For instance, an individual with a traumatic brain injury may indicate in their initial agreement that they require support with healthcare decisions, finances and estate planning. As they recover, they may gain capacity and only require assistance with healthcare decisions. If the individual later creates their will, the amended agreement may suggest they had testamentary capacity at the time of will execution.
Overall, supported decision-making may be a potential way for individuals with dynamic capacity to maintain their autonomy. Moreover, since capacity is decision, time and situation specific, agreements between a beneficiary and a supporter may assist in litigation by providing evidence of a testator’s capacity at the time of will creation.
Thank you for reading and have a great day!
Suzana & Tristan Montag.