Category: Capacity

20 Oct

Improving Dispute Resolution for the Last Stages of Life

Suzana Popovic-Montag Capacity, Elder Law, Estate Planning, Health / Medical, Power of Attorney Tags: , , , , , , , , , , 0 Comments

On October 1, 2021, the Law Commission of Ontario released its Final Report focusing on legal issues related to palliative care, end-of-life care and medical assistance in dying (collectively described as “last stages of life”).

One of the major areas for reform identified in the Report is dispute resolution for persons who are dying and those who support them. On this point, the Report notes:

Death, dying, and bereavement are highly emotional and important experiences for everyone involved – patients, family, friends and health care providers. Conflicts in the last stages of life may revolve around health care decision-making, a preference for treatment, or concerns about the quality of care being provided. Disagreements can take place in multiple care settings about many different matters. Disputes may involve patients, SDAs [substitute decision-makers], family members, health care facility and providers.

Current mechanisms in place for resolving disputes during the last stages of life include accessing the Consent and Capacity Board (a tribunal created under the Health Care Consent Act that adjudicates disputes related to capacity and decision-making), or the Superior Court of Ontario. For people in care, the Final Report also notes that some health care facilities have a “step up” dispute resolution process that can be accessed, for example, when communications between substitute decision-makers and treatment teams become polarized, which brings in bioethicists, risk managers, social workers or spiritual chaplains to provide information and guidance.

However, these measures can also fall short when dealing with conflicts arising during end-of-life care. The Final Report points out:

  • Not all facilities have a “step up” dispute resolution process, meaning not all patients and substitute decision-makers have access to an early dispute resolution process before applying to the Consent and Capacity Board.
  • The Consent and Capacity Board may not hear all disputes that deal with end-of-life care and may decline jurisdiction if:
    • there is a dispute as to the validity of a Power of Attorney for Personal Care or a dispute over who is authorized to act as an individual’s substitute decision-maker;
    • a patient or substitute decision-maker applies for directions because their wishes are not being followed by the patient’s treatment team; or
    • a physician withholds or withdraws treatment and declares a patient dead or brain dead, and thus no longer a patient.
  •  Some patients also die before their applications are heard by the Consent and Capacity Board.
  • It can take months to appeal a decision from the Consent and Capacity Board to the Superior Court. Currently, the Health Care Consent Act provides that appeals from Board decisions are to be scheduled “at the earliest possible date compatible with a just disposition”, but does not specify any actual timelines.
  • Proceedings in the Superior Court, such as an appeal or an application for an emergency injunction, tend to be more complex and expensive than proceeding before the Consent and Capacity Board, and are often delayed, making them less suitable for end-of-life disputes where time is often of the essence.

After consulting with the public, focus groups and experts, and commissioning multiple expert research papers on topics salient to the last stages of life, the Law Commission has made a number of recommendations, including:

  • The introduction of province-wide informal mediation services for end-of-life care, which would serve as an early dispute resolution mechanism and could be accessed by patients, substitute decision-makers (such as powers of attorneys), health care providers, and health care facilities.
  • A review of the mandate and jurisdiction of the Consent and Capacity Board, including updating the Board’s powers to be more responsive to end-of-life cases.
  • Amending the Health Care Consent Act to expedite appeals from the Consent and Capacity Board to the Superior Court of Justice that involve the last stages of life.

At this time, it is unknown whether the recommendations of the Law Commission will be implemented. However, in the meantime, a step that individuals can take to reduce potential conflicts and disputes from arising during the last stages of life is engaging in advanced health care planning. The Final Report notes:

Not enough people are planning for the last stages of life … Planning has been shown to improve patient outcomes; ensure alignment between a person’s values and treatment; lessen family distress; decrease hospitalizations and admissions to critical care; and decrease unwanted investigations, interventions, and treatments. Yet fewer than 1 in 5 Canadians have engaged in advance care planning.

Steps that you can take today include:

  • appointing a substitute decision-maker, such as a Power of Attorney for Personal Care, to make decisions on your behalf;
  • discussing your wishes, values, and beliefs with your substitute decision-maker. The Final Report points out that “[t]he law is clear that [substitute decision-makers] must consider the patient’s prior capable wishes, values, and beliefs, if known and applicable.”
  • completing an advance directive or “living will,” which sets out your wishes in terms of future care.

Thanks for reading, and have a great day!

Suzana Popovic-Montag

 

For further reading on advance care planning, see the following blog posts:

A Gift to Consider: The Importance of Proper Advanced Medical Care Planning

The ultimate “selfie”: Video record your health care wishes

Advance Care Planning for COVID-19

Encouraging Discussion About End-of-Life Wishes

Plan Well Guide’s Toolkit for Legal Practitioners: Helping You Help Your Clients Plan for Incapacity

30 Sep

What can you do if you Suspect that a Loved One is no longer Capable?

Rebecca Kennedy Capacity Tags: , , , , , , , , , , 0 Comments

Something that no one ever wants to deal with, but which is sometimes an unfortunate reality, is the incapacity of a loved one. You may notice that your spouse or parent is not themselves, or has acted in a way that causes you some concern.

If the person has a power of attorney for property and a power of attorney for personal care, the attorney(s) named in those powers of attorney may need to step in and begin to manage the person’s finances and care. The terms of the power of attorney may set out when the attorney can begin acting. For instance, some powers of attorney for property are effective immediately upon execution by the grantor, and continue to be in effect in the event of any subsequent incapacity.

The power of attorney may also outline what kind of confirmation of the grantor’s incapacity is necessary before the attorney may begin acting on the grantor’s behalf. If the grantor is willing to cooperate in whatever capacity assessment is required, this step may be simple and straightforward to complete. However, as is often the case, the person may resist acknowledging any decline in their capacity or cognition, and may not wish to have their capacity assessed.

Pursuant to s. 78(1) of the Substitute Decisions Act, 1992 (the “SDA”), a person must consent to having their capacity assessed. If they refuse to be assessed, the assessor is precluded from performing an assessment.

If a person refuses to be assessed, it is possible to seek a court order for an assessment, pursuant to s. 79(1) of the SDA. In order to do so, the following will be required:

a) the person’s capacity must be in issue in a proceeding under the SDA; and

b) the court must be satisfied that there are reasonable grounds to believe that the person is incapable.

As a capacity assessment can be an intrusive process, the court takes requests to order them very seriously, and will often not be quick to order one. As discussed in Abrams v Abrams, [2008] O.J. No. 5207, some of the factors that the court will consider in making a determination in this regard include the following:

i) the purpose of the SDA, being to protect the vulnerable;

ii) the nature and circumstances of the proceedings in which the issue is raised;

iii) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;

iv) whether the assessment will be necessary in order to decide the issue before the court;

v) whether any harm will be done if an assessment does not take place; and

vi) the wishes of the person sought to be examined, taking into account his or her capacity.

Thanks for reading,

Rebecca Rauws

 

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16 Sep

Congratulations Britney!

Doreen So Capacity, Common Law Spouses, Estate Planning, Ethical Issues, Executors and Trustees, General Interest, Guardianship, In the News, News & Events, Online presence, Recently, Uncategorized Tags: , , , , , , 0 Comments

 

Our blog has been following Britney Spears’ conservatorship proceeding closely in the recent months.  So far, the #FreeBritney movement has seen significant progress through the appointment of a new lawyer for Britney, and very recently through Jamie Spears’ petition to end the conservatorship.  Even though Britney is still under a conservatorship of property and of person, the iconic popstar surprised the world with her engagement to long-time boyfriend, Sam Asghari.

This fantastic news follows Britney’s stunning court testimony back in June that she wanted to be able to get married and have a baby but that she was told that she could not do so because of the conservatorship.

To celebrate Britney’s engagement, I wanted to share Justice Benotto’s words in Calvert (Litigation Guardian of) v. Calvert, 1997 CanLii 12096, as affirmed by the Court of Appeal in 1998 CanLii 3001, with leave to the Supreme Court of Canada dismissed:

“A person’s right of self-determination is an important philosophical and legal principle. A person can be capable of making a basic decision and not capable of making a complex decision. Dr. Molloy, the director of the Geriatric Research Group and Memory Centre and associate professor of geriatrics at McMaster University, said:

Different aspects of daily living and decision-making are now viewed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision- making capabilities and assessments.

[…]

The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427.”

While the foregoing passage may not sound particularly romantic, the notion that marriage is the essence of simplicity seems rather befitting to the intimate decision that was made between Britney and Sam.

Britney is not yet a “freed” woman, but as her song goes,

”All I need is time (is all I need)

A moment that is mine

While I’m in between”.

Thanks for sharing your engagement moment with us Britney! Click here for the video of “I’m Not a Girl, Not Yet a Woman”.

Doreen So

17 Aug

Considerations for Determining the Validity of Powers of Attorney and Appointing Guardians for Property and Personal Care

Sanaya Mistry Capacity, Estate & Trust, Estate Litigation, Guardianship, Litigation, Power of Attorney Tags: , , , , , 0 Comments

In yesterday’s blog, I discussed the recent decision in Rudin-Brown et al v. Brown, 2021 ONSC 3366, focusing on the court’s decision in respect of the admissibility and weight given to the audio recordings of Carolyn Brown’s telephone conversations.

In today’s blog, I discuss the factors considered by the court in (i) determining that the 2016 powers of attorney were invalid, and (ii) declaring Carolyn’s 2009 power of attorney for property to be operative, and (iii) appointing Jeanne and Missy as Carolyn’s co-guardians of the person.

The court applied the factors outlined in  Royal Trust Corporation of Canada v. Saunders,  [2006] OJ No 2291, to determine whether or not Carolyn’s 2016 powers of attorney were executed under suspicious circumstances. Particularly, the court considered the following:

  1. The extent of physical and mental impairment of the grantor around the time the powers of attorney were signed;
  2. Whether the powers of attorney in question constitutes a significant change from the former powers of attorney;
  3. The factual circumstances surrounding the execution of the powers of attorney; and
  4. Whether any grantee was instrumental in the preparation of the powers of attorney.

Note, the consideration of “whether the will in question generally seems to make testamentary sense” does not apply to powers of attorney.

The court noted that, among other things, (i) there was evidence that Carolyn was having memory issues at the time the powers of attorney were signed, (ii) after visiting two law firms without success, Gordon downloaded forms for powers of attorney and some will templates from the internet, and (iii) one of the witnesses to the powers of attorney testified that Carolyn seemed “vaguely puzzled” the day she witnessed Carolyn’s signature and also stated that Carolyn said that Gordon had told her to sign the powers of attorney.

The court concluded that the powers of attorney were executed under suspicious circumstances in respect of capacity and undue influence. The court also concluded that Gordon failed to prove that Carolyn had capacity to execute the powers of attorney and declared the powers of attorney to be invalid. In addition, the court found that Gordon “failed to show that Carolyn signed the powers of attorney as a result of her own “full, free and informed thought” and has failed to rebut the presumption of undue influence arising from his and Carolyn’s relationship” and therefore concluded that “even if Carolyn had the capacity to sign one or both powers of attorney, they are not valid due to undue influence.”

In respect of appointing guardians of property and personal care for Carolyn, the court did not solely rely on Carolyn’s 2009 powers of attorney, but rather entered into a detailed analysis to determine who would be appointed as Carolyn’s guardians. As noted by Justice H. J. Williams,

“In appointing a guardian for property, the court shall consider whether the proposed guardian is the attorney under a continuing power of attorney, the incapable person’s current wishes and the closeness of the applicant’s relationship to the incapable person. Where there is an ongoing valid power of attorney, cases in Ontario and elsewhere have held that the court must first determine whether there is strong evidence of misconduct or neglect on the part of the attorney before the court should ignore the wishes of the donor.”

The court did “not hesitate to find that, in accordance with Carolyn’s 2009 power of attorney for property, Jeanne should be Carolyn’s guardian for property and that Carter should be the alternative attorney.” The court noted that in Carolyn’s 2009 power of attorney for personal care, Carolyn had named Gordon and Missy as her attorneys for personal care. While the court was satisfied that Missy would be able to fulfill the duties of guardian of the person, the court was not satisfied that Gordon would be able to do so for several reasons, some of which are outlined below:

  1. “A guardian must make decisions that are in the incapable person’s best interests”, which Gordon had failed to do consistently for Carolyn.
  2. “A guardian must seek to foster regular personal contact between the incapable person and supportive family members and friends” and Gordon failed to foster Carolyn’s relationships with Missy or Jeanne.
  3. “Gordon did not consult anyone other than Carolyn in preparing his guardianship plan.”
  4. Gordon intended to “discontinue a companion service for Carolyn that had been recommended for her and that she had been receiving and apparently enjoying.” Although Gordon said that “Carolyn does not remember the visits and is unhappy with how much they cost”, the court found that “it is more likely that Gordon was unhappy about the cost.”
  5. The court was also concerned by the fact that Gordon had failed to follow court orders. He failed to comply with Justice Kershman’s “order to stop recording Carolyn’s conversations.” It is important to note that the court found that “it was evident from Gordon’s evidence that he felt justified in ignoring a court order if he did not agree with it.”

In summary, the court concluded that “it is in Carolyn’s best interests for Missy and Jeanne to be jointly appointed as Carolyn’s full guardians of the person.”

Thank you for reading.

Sanaya Mistry

 

22 Apr

What is the Purpose of Section 3 Counsel Under the Substitute Decisions Act, 1992?

Rebecca Kennedy Capacity Tags: , , , , , , , , , , 0 Comments

Pursuant to section 3 of the Substitute Decisions Act, 1992 (the “SDA”), if there is a proceeding under the SDA where a person’s capacity is in issue, but they do not have legal representation, the court may direct that the Public Guardian and Trustee (the “PGT”) arrange for legal representation for the person. The person will be deemed to have capacity to instruct counsel. This legal representation is often referred to as “section 3 counsel”.

We have previously blogged about the role of section 3 counsel (for instance, here and here). Section 3 counsel has been described as a safeguard that protects the dignity, privacy, and legal rights of a person who is alleged to be incapable.

Section 3 counsel plays a very important role in proceedings dealing with a person’s capacity, as they allow the person whose capacity, and possibly their rights and liberties, are at issue, to have a voice before the court.

In Singh v Tolton, 2021 ONSC 2528, there was a proceeding relating to the validity of powers of attorney executed by Rajinder Kaur Singh. The PGT proposed that the court consider appointing section 3 counsel for Rajinder. One of Rajinder’s children also requested that section 3 counsel be appointed. One of her other children, Anney, took the position that section 3 counsel was not necessary and raised a concern with the expense of appointing counsel, which cost would be borne by Rajinder.

The court concluded that this was an appropriate situation for the appointment of section 3 counsel. In coming to this conclusion, the court considered the purpose of the SDA, which is to protect the vulnerable. As noted by Justice Strathy, as he then was, in Abrams v Abrams, [2008] O.J. No. 5207, proceedings under the SDA do not seek to balance the interests of the litigants, “but the interests of the person alleged to be incapable as against the interest and duty of the state to protect the vulnerable.” Section 3 is just one of the provisions of the SDA that demonstrate the care that must be taken to protect the dignity, privacy, and legal rights of the individual.

The court in Singh v Tolton also noted that the material before it disclosed a family at odds regarding Rajinder’s personal care. In a situation such as this, there may be a concern that the wishes or best interests of the person whose capacity is in issue will be lost amidst the fighting family members. Section 3 counsel can serve a crucial function in these types of circumstances, by sharing the person’s wishes and instructions with the court.

Thanks for reading,

Rebecca Rauws

 

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13 Apr

Are updates to the Substitute Decisions Act being proposed too?

Nick Esterbauer Capacity, Elder Law Tags: , , , , , , , 0 Comments

Recent discussion of proposed amendments to the Succession Law Reform Act under Bill 245 has raised questions of whether corresponding changes will be made to the Substitute Decisions Act, 1992.  In particular, some estate lawyers are wondering whether a new validation section may be added to the Substitute Decisions Act to address the issue of court validation of powers of attorney (like the new section 21.1 of the Succession Law Reform Act has been proposed to allow courts to validate improperly-executed wills) and/or whether remote execution options may soon be made permanent for powers of attorney as well as wills.

Validation Provisions

The Substitute Decisions Act already contains curative provisions that allow the court to validate incapacity planning documents in circumstances where the documents are not executed in strict compliance with formal requirements.

Subsection 10(4) of the Substitute Decisions Act reads as follows with respect to the validation of Continuing Powers of Attorney for Property:

Non-compliance

(4) A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so.

Subsection 48(4) of the Substitute Decisions Act reads as follows with respect to the validation of Powers of Attorney for Personal Care:

Non-compliance

(4) A power of attorney for personal care that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the power of attorney for personal care to be effective if the court is satisfied that it is in the grantor’s interests to do so.

Remote Execution of Documents in Counterpart

While the focus of discussions among estate lawyers regarding Bill 245 may be the proposed updates to the Succession Law Reform Act and, in terms of formal will execution, the amendment of section 4 as it relates to the requirements for the witnessing of wills, Bill 245 also includes proposed changes to the Substitute Decisions Act under Schedule 8.

A new section 3.1 of the Substitute Decisions Act is being proposed to add specific references to the use of audio-visual communication technology and counterpart signing options in the execution and witnessing of Continuing Powers of Attorney for Property and Powers of Attorney for Personal Care.  Accordingly, if Bill 245 is passed, the remote and counterpart execution options made available during the pandemic will be made permanent for wills and powers of attorney alike.

Thank you for reading.

Nick Esterbauer

08 Apr

Incapacity to Sue under section 7 of the Limitations Act, 2002

Doreen So Capacity, Continuing Legal Education, Estate & Trust, Estate Litigation, Ethical Issues, Uncategorized Tags: , , , , 0 Comments

The basic limitation period under section 4 of the Limitations Act, 2002 provides that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.  However, pursuant to section 7(1) of the Act,  the “clock” does not run when the person with the claim,

(a)  is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and

(b)  is not represented by a litigation guardian in relation to the claim.

A person is also presumed to be capable of commencing a proceeding in respect of a claim at all time unless the contrary is proved (section 7(2)), although minors are dealt with separately under section 6 of the Act.

The issue of the plaintiff’s capacity to commence a proceeding in respect of his claim was considered at length by the Court of Appeal in Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447Carmichael is a tragic case involving the murder of the plaintiff’s 11 year old son.  The plaintiff strangled his son to death in 2004 when he was suffering from mental illness and psychotic delusions.  During this time, the plaintiff was also taking an anti-depressant that was manufactured by the defendant drug company.  The plaintiff was charged with murder and he was found to be not criminally responsible as a result of his mental disorder.  He later received an absolute discharge from the Ontario Review Board on December 2, 2009.  Nearly two years after that, the plaintiff commenced his claims against the drug company on October 5, 2011.

The defendant drug company brought a motion for summary judgment to dismiss the plaintiff’s claim as statute barred.  The motions judge dismissed the motion because he found that the plaintiff was incapable of commencing a proceeding because of his psychological condition until the day of his absolute discharge from the Ontario Review Board.  The Court of Appeal disagreed.

The Court of Appeal affirmed the use of the Huang/Hengeveld indicators as a list of non-exhaustive, objectively verifiable indicators of incapacity under section 7(1)(a) of the Act (see paras. 94-96):

  • a person’s ability to know or understand the minimum choices or decisions required to make them;
  • an appreciation of the consequences and effects of his or her choices or decisions;
  • an appreciation of the nature of the proceedings;
  • a person’s ability to choose and keep counsel;
  • a person’s ability to represent him or herself;
  • a person’s ability to distinguish between the relevant and irrelevant issues; and,
  • a person’s mistaken beliefs regarding the law or court procedures.

Moreover, the plaintiff’s physical, mental, or psychological condition must be the cause for the incapacity in order to meet section 7(1)(a).  The incapacity cannot arise from other sources, such as lack of sophistication, education, or cultural differences (para. 101).

The Court of Appeal ultimately found that the plaintiff had the capacity to sue the defendant drug company prior to his absolute discharge from the Ontario Review Board.  The Court disagreed with the motions judge’s view of the plaintiff’s expert evidence.  The plaintiff’s expert witness was criticized for never having prepared a capacity assessment before and for making conclusions that were unsupported by the evidence.  Rather,

“The evidence shows that Mr. Carmichael had several reasons for not suing GSK before December 2, 2009: he did not believe he had the necessary expert evidence until he received the genetic test from Dr. Lucire in October 2009; he was worried about repercussions if the Hospital decided that he was not taking responsibility for his actions; and he was concerned for his own and his family’s well-being. These are understandable reasons for not commencing a lawsuit. But in my view, none of these reasons, alone or together, prove that Mr. Carmichael was incapable of suing GSK until December 2, 2009 because of his psychological condition.” (para. 163)

Leave to appeal to the Supreme Court of Canada was denied last week.

Thanks for reading!

Doreen So

15 Mar

Model Orders for the Estates List in the Toronto Region!  

Sanaya Mistry Capacity, Estate & Trust, Estate Litigation, Guardianship, Litigation, Passing of Accounts, Power of Attorney, Support After Death, Trustees, Wills Tags: , , , , , , , , 0 Comments

The Consolidated Practice Direction Concerning the Estates List in the Toronto Region was established for the hearing of certain proceedings involving estate, trust and capacity law, applying to matters on the Estates List in the Toronto Region.

As of March 9, 2021, Part VII (Contested Matters – Estates) of this practice direction was amended to make reference to model orders prepared by the Estate List Users’ Committee.

Generally, parties are expected to take the time and care to prepare proposed orders giving directions for consideration by the court. If the parties are unable to agree upon an order giving directions and a contested motion for directions is required, each party must file a copy of the draft order giving directions it is seeking with its motion materials.

 

In addition to providing requirements for what orders giving directions should address, where applicable, this practice direction now includes the following model orders:

  1. Order Giving Directions – Appointment of Section 3 Counsel
  2. Order Giving Directions – Power of Attorney/Guardianship Disputes
  3. Order Giving Directions – Will Challenge
  4. Order Giving Directions – Dependant’s Support
  5. Order Giving Directions – Passing of Accounts

 

As noted in the practice direction, the preparation of draft orders for consideration by the court will greatly expedite the issuance of orders.  Where the relevant model orders have been approved by the Estate List Users’ Committee, a copy of the draft order showing all variations sought from the model order must be filed.

The addition of model orders can greatly benefit the Estates List in the Toronto Region. Among other things, these model orders provide a baseline for all parties, such that it can significantly reduce drafting time and potential disagreements on wording among parties, which in turn can increase efficiency and reduce costs.

Many thanks to the Estate List Users’ Committee for their time and efforts in preparing these model orders!

Thank you for reading.

 

Sanaya Mistry

09 Mar

Plan Well Guide’s Toolkit for Legal Practitioners: Helping You Help Your Clients Plan for Incapacity

Arielle Di Iulio Capacity, Elder Law, Health / Medical, Power of Attorney Tags: , , , , , 0 Comments

Last year, my colleague Nick Esterbauer blogged about the Plan Well Guide – a free online tool to assist individuals with their advance care planning. An advance care plan sets out how a person wishes to be treated during a serious illness or health crisis. The Plan Well Guide helps users to create a ‘Dear Doctor’ Letter explaining their values and preferences with respect to their future medical care, which can then be given to their physician and substitute decision-makers to ensure that their wishes are known. For a more in-depth look at the Plan Well Guide and the process of creating a Dear Doctor letter, you can read Nick’s blog here.

Recently, the Plan Well Guide launched a new toolkit designed for legal practitioners. This free online toolkit is intended to help lawyers help their clients become better prepared for future serious illness and incapacitation. In addition to various educational resources for both lawyers and their clients, the toolkit includes:

  • a sample power of attorney for personal care;
  • a sample advanced health care directive;
  • a sample personal directive;
  • a sample ‘Dear Doctor’ letter; and
  • a step-by-step guide on how lawyers can incorporate the Plan Well Guide into their practice.

Of course, the sample legal documents contained in the toolkit should be amended to reflect the client’s specific set of circumstances and the laws of the applicable jurisdiction.

What I like most about the Plan Well Guide’s new toolkit is that it highlights the importance of a multidisciplinary approach to advance care planning. An effective advance care plan – that is, a plan which facilitates medical substitute decision-making that is consistent with the incapable person’s actual values and preferences – depends on the collaborative efforts of a person’s lawyers, doctors, and substitute decision-makers. The Plan Well Guide and its new toolkit offer accessible ways for legal professionals, health care professionals, and their clients/patients to coordinate their efforts to make serious illness planning more effective. If a lawyer is interested in improving the quality of future medical decision-making and patient outcomes for their clients, the Plan Well Guide’s toolkit for legal practitioners is certainly worth looking into.

Thanks for reading!

Arielle Di Iulio

03 Feb

A Third Look at PGT v Cherneyko, 2021

Ian Hull Capacity, Elder Law, Guardianship, Litigation, Power of Attorney Tags: , , , , , , 0 Comments

Earlier this year, our colleague Doreen So, blogged in two parts (here and here) on the matter of PGT v Cherneyko. It is a blog that discusses a litany of failures by an attorney for property. While Doreen covered the facts in full, they are worth repeating here in part:

“Jean Cherneyko is a 90-year-old woman.  Jean did not have any children of her own.  Her closest known relative was a niece in the US.  By the time of the PGT application, Jean was in a long-term care home.  Prior to that, Jean lived alone in the same home that she had lived in since 1969.  Jean had a friend named Tina who she had known for about five years.  On August 15, 2019, Jean and Tina went to a lawyer’s office.  Jean named Tina as her attorney for property and personal care.  Jean also made a new Will which named Tina as the estate trustee and sole beneficiary of her estate.  A week or so later on August 27th, Jean and Tina went to Jean’s bank where $250,000.00 was transferred to Tina […]”

The PGT applied to take over as guardian for property and, among other things, to set aside the gift to Tina. The court agreed and ordered the $250,000 returned to Jean on the basis of resulting trust.

In a novel approach to the law of gifts, the court in Cherneyko relied on Pecore to establish that the gift ought to be returned, saying: “The leading Canadian case on the law of gifts, the Supreme Court of Canada in Pecore v Pecore, 2007 SCC 17 (CanLII) at paras. 24-26 established that where a gratuitous transfer of property is found, there is a presumption of a resulting trust. The onus falls to the recipient to rebut the presumption.” In the court’s view, Tina failed to rebut the presumption.

But this represents a new application of the Supreme Court’s analysis and it’s worth revisiting Pecore.

In 2007, Justice Rothstein, writing for a unanimous court (Justice Abella concurring) looked closely at gratuitous gifts of joint bank accounts, between parents and children, and whether the presumption of resulting trust and advancement applied in modern times:

“The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers.  When a transfer is challenged, the presumption allocates the legal burden of proof.  Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110.  This is so because equity presumes bargains, not gifts.”

The decision in Cherneyko represents a significant expansion of the principles of Pecore by applying them to inter vivos gifts between unrelated adults. Traditionally, if the courts determine that a transferor lacked the requisite capacity, the gift is void as the transferor lacked the capacity to form the proper intention to gift. Ball v. Mannin, an almost 200-year-old UK case established the original test for granting a gift and held that a person had capacity if the person was “capable of understanding what he did by executing the deed in question, when its general purport was fully explained to him.” The Supreme Court has previously outlined a separate test in Geffen v Goodman Estate in 1991, examining the nature of the relationship itself, and applying a presumption of undue influence where there is the presence of a dominant relationship. While the failed gift in Cherneyko was ultimately returned under a resulting trust, it will be fascinating to see if other courts also continue this expansion of Pecore.  We’ll keep you posted.

Thanks for reading!

Ian Hull and Daniel Enright

 

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  • The latest episode of our podcast is now live! Hull on Estates #624 – Worsoff and Virtual vs. In-Person Examinatio… https://t.co/oblkloPaYh