Capacity issues arise frequently in the estates world, yet capacity assessments are often misunderstood. Keep the following in mind when thinking about capacity.
Capacity is Task and Time Specific
In the estates world, the practical takeaway is simple: the relevant question is always the capacity to do what, and when. Failing to define the decision under consideration can render any assessment of capacity of limited value.
Informal Legal Assessments vs. Statutory Capacity Assessments
Estates practitioners routinely make informal capacity assessments when taking instructions form their clients. These remain an essential part of competent practice and should always be supported by detailed contemporaneous notes.
A statutory capacity assessment, however, is different. Under the Substitute Decisions Act, 1992, only a qualified capacity assessor may conduct certain assessments that have legal consequences, including findings of incapacity that trigger statutory guardianship of property.
Estates practitioners should be clear with clients that a physician’s opinion or a lawyer’s file notes are not substitutes for a statutory assessment when legislation requires one.
Common Estates Contexts Where Assessments Arise
Capacity assessments most commonly intersect with the estates practice in the following situations:
- contested wills where testamentary capacity is in issue;
- disputes over the validity of continuing powers of attorney;
- guardianship applications involving property or personal care; and
- allegations of undue influence or exploitation raised during estate administration.
While formal assessment are not required to make a valid will, the absence or presence of assessment evidence from the drafting solicitor can have a significant affect in litigation that arises down the road.
Strategic Risks of Requesting an Assessment
Requesting a capacity assessment has consequences. A finding of incapacity can result in:
- loss of autonomy;
- statutory guardianship;
- increased family conflict; and
- entrenched litigation positions.
As an Estates practitioner it is important to consider whether an assessment is necessary to resolve the legal issue at hand, or whether it risks creating additional problems without resolving the underlying dispute.
Assessments Are Evidence, Not Determinative
A Court remains the ultimate decision‑makers on legal capacity. Capacity assessments are important evidence, but not dispositive. They may be challenged on scope, methodology, or timing, particularly in contentious estate litigation.
Accordingly, assessments should be viewed as part of a broader evidentiary record, rather than as definitive answers.
Finally, capacity assessments are powerful tools in estates practice, but they are not routine checklists to be triggered whenever a client is elderly or a file is contentious. Used thoughtfully, they can protect vulnerable individuals and clarify authority. Used reflexively, they can escalate conflict and create irreversible consequences.
Thank you for reading and have a great weekend!