When family disputes arise about an elderly parent’s finances or decision-making, often, one of the first questions is whether that person is still capable of making their own decisions. A recent Ontario court decision, Licursi v. Bank of Montreal, 2026 ONSC 944, shows just how quickly the Court may step in when there are real concerns about capacity.
The Facts
This case involved a dispute between two sisters over their 92-year-old father’s care and finances. He was living in a secure memory care unit and had been diagnosed with moderate dementia, along with other serious health issues.
The dispute had already given rise to parallel proceedings. One daughter, together with Mr. McKay, commenced an action alleging misuse of a power of attorney and claiming substantial damages. At the same time, the other daughter brought an application seeking wide‑ranging relief relating to property transfers, alleged fiduciary breaches, and validation of her authority under a competing power of attorney.
Central to both proceedings was whether Mr. McKay had the capacity to make decisions about his property and to instruct counsel.
The Issue
The motion before the Court was whether Mr. McKay should be ordered to undergo a capacity assessment under s. 105(2) of the Courts of Justice Act, despite his own evidence asserting that he was capable.
The Court’s Decision
The Court granted the motion and ordered that Mr. McKay undergo a cognitive capacity assessment. It also stayed a related motion concerning the litigation guardian pending the outcome of that assessment.
Why did the Court order an assessment?
In reaching its decision, the Court considered whether there was sufficient evidence to raise a genuine issue regarding capacity, and whether that issue was material to the proceedings. Applying this framework, the Court found that both requirements were clearly met.
The medical record demonstrated significant cognitive impairment, including a diagnosis of moderate dementia and evidence of memory deficits and prior failed screening. While Mr. McKay asserted his capacity, the Court placed greater weight on objective medical evidence.
Importantly, capacity was central to the litigation. It directly affected whether the father could instruct counsel, participate meaningfully in the proceedings, and make decisions regarding his property and legal claims.
The Court acknowledged that ordering a capacity assessment is an intrusive step that engages personal autonomy. However, it emphasized that this concern must be balanced against the need to protect potentially vulnerable individuals and to ensure that the litigation proceeds on a reliable factual basis.
Takeaways
Licursi highlights several practical points for estates litigators. First, where medical evidence points to meaningful cognitive impairment, the threshold for obtaining a capacity assessment is not high. Second, capacity will often be treated as a threshold issue that must be resolved before the Court addresses the merits of related disputes, including powers of attorney and alleged financial misconduct. Finally, an individual’s assertion of capacity will not, on its own, displace objective evidence to the contrary.
Conclusion
The decision reinforces the Court’s willingness to intervene early in disputes involving alleged incapacity. Where capacity is genuinely in question, the Court will prioritize obtaining a reliable assessment before determining who controls the litigation or the property at issue.
Thank you for reading!
By Yalda Mostafaie