Category: Capacity

05 Mar

Revocation of a Power of Attorney for Personal Care and its impact on substitute decision making under the Health Care Consent Act

Sydney Osmar Capacity, Elder Law, Health / Medical Tags: 0 Comments

Section 20 of the Health Care Consent Act (“HCCA”) provides for a legislative hierarchy of substitute decision makers for persons who have been found incapable with respect to treatment. The hierarchy is as follows:

  1. The incapable person’s guardian of the person;
  2. The incapable person’s attorney for personal care;
  3. The incapable person’s representative appointed by the Consent and Capacity Board;
  4. The incapable person’s spouse or partner;
  5. A child or parent of the incapable person, or an agency that replaces the parent’s authority;
  6. A parent of the person who only has a right of access;
  7. A brother or sister of the incapable person; and
  8. Any other relative of the incapable person.

Those in the above list may only give or refuse consent on behalf of the incapable person if they are: at least 16 years of age, are not prohibited by court order, are available, and are willing to assume this responsibility. A person from the above hierarchy may only act as the substitute decision maker with regard to treatment, if there is not a person who also meets these requirements who ranks higher within the hierarchy.

Sections 20(5) and 20(6) of the HCCA sets out that if no one in the above list meets the requirements to make treatment decisions, or, if there are two equally ranking parties who both meet requirements but disagree on the treatment decision, the decision will devolve to the Public Guardian and Trustee (“PGT”).

As is clear by the placement within the above hierarchy, the act of granting a power of attorney for personal care (“POAPC”) holds great weight when it comes to determining substitute decision makers with regard to treatment decisions. However, the significance of the act of revoking a POAPC in relation to the legislative hierarchy is less clear.

For example, it is quite common for a person to grant a POAPC to their spouse or child, however, in revoking the POAPC, the spouse or child could still remain the legal substitute decision maker under the section 20 hierarchy, should there be no other higher ranking individual willing and able to make treatment decisions, and if the grantor fails to execute a new POAPC.

I have located two decisions of the Consent and Capacity Board (the “Board”), which suggests that in such circumstances, the Board will pull language from other sections of the HCCA to circumvent the hierarchy provided under section 20, where it is clear to do so would be in the incapable person’s best interests.

In A(I) Re, Mrs. I.A. had previously appointed her two children as her attorneys for care. However, this POAPC was later revoked, with Mrs. I.A. informing her lawyer she feared her two children would be unable to reach agreements on important health care decisions. Two distant relatives were instead appointed pursuant to a new POAPC. However, when Mrs. I.A. lost capacity, and a treatment decision needed to be made, the distant relatives felt they were not best suited to make such a decision.

Both children applied to act as Mrs. I.A.’s representative under s. 33 of the HCCA. In coming to its decision the Board accepted that Mrs. I.A.’s overt act of revoking the POAPC that appointed her children was a prior expressed relevant value and belief, however, this did not impact the fact that both children still qualified as decision makers under the section 20 hierarchy. The Board ultimately determined that it was not in Mrs. I.A.’s best interests to have her children act as decision makers, and concluded they could not agree, such that the decision devolved to the PGT.

In D(D) Re, this issue again arose, where the incapable person, D.D. (prior to becoming incapable) granted a POAPC to her husband, later revoking the POAPC when she believed that her husband would not act in her best interests. Because a new POAPC was never executed, the husband remained the legal decision maker under section 20. D.D.’s daughter, J.R., brought an application to the Board to act as her representative. In coming to its conclusion, the Board noted that it was clear that D.D. had not understood that by revoking the POAPC, her husband would remain the decision maker under the HCCA hierarchy, and that it was equally clear her intention had been to remove her husband as the legal decision maker. Therefore, to circumvent the hierarchy, the Board turned to a best interests analysis and ultimately appointed D.D.’s daughter as her decision maker.

Thanks for reading!

Sydney Osmar

For a related discussion on consent to treatment and the HCCA, click here.

30 Jan

What Impact Might MAID Have on a Will Challenge?

Nick Esterbauer Capacity, Estate Litigation, Health / Medical, Wills Tags: , , , , , , , , , , 0 Comments

In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area.  As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?

Our regular readers will already be well aware that capacity is task, time, and situation specific.

Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment.  Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:

A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.

The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow.  While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different.  Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.

Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy.  While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.

Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.

Thank you for reading,

Nick Esterbauer

27 Jan

Recent Developments in MAID

Nick Esterbauer Capacity, Elder Law, Ethical Issues, Health / Medical, In the News Tags: , , , , , , 0 Comments

Our blog has previously covered the developments in medical assistance in dying (MAID) since the prohibition against MAID ended in Canada in 2016.

Almost 230 thousand Canadians responded to a recent government survey on MAID, making it the largest public consultation in Canadian history.  Although the complete survey results have yet to be released, respondents are reported to have shown great support for making it easier for Canadians to access MAID.

As MAID has gained recognition throughout the country, many have fought for increased accessibility and the expansion of eligibility criteria.  Specifically, some believe that the criteria are too restrictive in excluding (1) individuals whose deaths are not imminent, and (2) those who cannot consent to receive MAID at the time at which it is administered.  Because recipients of MAID are required to provide consent personally immediately prior to its administration (rather than in advance), health problems that may also impact mental capacity can render some of them ineligible.

In some parts of the country, MAID is already accessed at significant levels.  In Vancouver Island, with the greatest access in Canada to MAID per capita, MAID accounted for over six percent of all deaths in 2019.

Given the clear engagement of Canadians regarding the issue of enhancing access to MAID, it will be interesting to see how legislation regarding MAID may be updated over time to address the potential introduction of advanced consent and/or the authority of substitute decision-makers to confirm consent.

Thank you for reading,

Nick Esterbauer

 

Other blog posts that may be of interest:

13 Nov

Important Principles from the ONCA Regarding Capacity

Suzana Popovic-Montag Beneficiary Designations, Capacity, Estate Litigation, Estate Planning, Executors and Trustees, Trustees, Wills Tags: , 0 Comments

Lewis v. Lewis is a recent Ontario Court of Appeal decision in which the Appellants challenged the dismissal of their Application from the Superior Court of Justice. At issue was whether the Appellants’ mother, Marie Lewis, had the requisite capacity to execute new powers of attorney for property and personal care. The Appellants sought to invalidate the new powers of attorney and bring back into effect prior powers of attorney which Mrs. Lewis executed in 1995.

The Appellants raised several issues on appeal. In essence, they took issue with the application judge’s assessment of the evidence and exercise of his case management discretion.

In dismissing the appeal, the Ontario Court of Appeal emphasized the following principles regarding capacity:

  • Since capacity is presumed, those objecting to the document(s) have the onus to rebut that presumption, with clear evidence, on a balance of probabilities.
  • Similarly, those raising the issue of suspicious circumstances and undue influence bear the onus of establishing it, on a balance of probabilities.
  • The fact that someone had various chronic medical conditions throughout their life does not automatically mean that they lacked capacity. It is open to the application judge to consider the evidence. In doing so, the application judge may reject any evidence that they find to be unreliable.
  • Without evidence to the contrary, it is reasonable for an application judge to take “solace” from the fact that the individual executed their new powers of attorney before their solicitor of many years.
  • It is reasonable for an application judge to refer to the statements of section 3 counsel, appointed by the Office of the Public Guardian and Trustee, concerning an individual’s expressed wishes.

Good things to keep in mind when dealing with capacity issues.

Thanks for reading … Have a great day!

Suzana Popovic-Montag and Celine Dookie

12 Sep

Section 2(4) of the Substitute Decisions Act: Releases and Reverse Onuses

Sydney Osmar Capacity, Guardianship Tags: 0 Comments

Under the Substitute Decisions Act, 1992 (“SDA”), if a person is eighteen years of age or more, there is a presumption of capacity. However, pursuant to section 2(4) of the SDA, if a gift, or contract is made by a person either while the person’s property is under guardianship, or within one year before the guardianship is established, the onus shifts to the other person to prove that they did not have reasonable grounds to believe the person incapable.

In the recent decision of the Ontario Superior Court of Justice (Divisional Court), Foisey v Green, the Court provides clarification on the correct test to be applied under section 2(4).

In Foisey v Green, Ms. Foisey and Ms. Green were the co-beneficiaries of their brother’s estate, who had died intestate. Ms. Foisey and Ms. Green had been estranged for many years, however, through the use of a private investigator, Ms. Green was able to locate her sister at a retirement residence in Ontario. Ms. Green then met with her sister and arranged for legal representation. Ms. Foisey ultimately renounced her right to act as estate trustee of her brother’s estate and when the time came to distribute the assets of the estate, Ms. Foisey provided Ms. Green with a release.

Shortly after having provided the release, Ms. Foisey was found to be incapable of managing her own property, and the Public Guardian and Trustee (“PGT”) was appointed as her guardian of property. The PGT became concerned that Ms. Foisey had received significantly less than what was supposed to be a 50% share in the estate. The PGT made repeated inquiries for more information from Ms. Green and her counsel, but received little to no response. In result, the PGT brought an application seeking to compel Ms. Green to pass her accounts.

In applying section 2(4) of the SDA, the application judge concluded that because of the existence of red flags, Ms. Green had not satisfied that she did not have reasonable grounds to believe Ms. Foisey was incapable when she signed the release. The red flags identified by the application judge included the fact that Ms. Foisey had a long-standing mental illness, that Ms. Foisey lived in a retirement residence, that Ms. Foisey was part of a trusteeship program and that Ms. Green and her lawyer had failed to provide the PGT with any information to satisfy their concerns. For these reasons, the application judge ordered Ms. Foisey to pass her accounts.

On appeal, the Divisional Court held that the “red flags” test applied by the application judge was the incorrect test to apply, because in doing so, the judge failed to consider the extent to which each red flag was known by Ms. Green, and whether Ms. Green had reasonable grounds to believe that Ms. Foisey was incapable of providing the release.

The Divisional Court examined the meaning of “reasonable grounds to believe” looking to jurisprudence and dictionary definitions, concluding that it means a reasonable probability, or that there be an objective basis for the belief which is based on compelling and credible information.

The Divisional Court went on to hold that when assessing whether a person has capacity to enter into a contract, at the time of entering into the contract, they must understand the information relevant to deciding whether or not to enter into the contract. If they can do this, you must further ask if the person can appreciate the reasonably foreseeable consequences of entering into the contract.

After laying out the framework of section 2(4), the Divisional Court went on to consider the red flags identified by the application judge, holding that:

  • there was no evidence to suggest Ms. Green knew of her sister’s mental illness,
  • no one from the retirement residence suggested that Ms. Foisey was incapable,
  • Green had spoken with the case manager of the trusteeship program and had not been told that Ms. Foisey had severe mental health difficulties,
  • There was evidence from Ms. Green’s lawyer that Ms. Foisey had legal representation, and appeared to be lucid and understood the release that was properly explained to her by counsel. The Court further acknowledged that a person who suffers from a cognitive impairment is competent with respect to a specific act as long as the act in question takes pace during a lucid interval.

On balance, the Divisional Court concluded that the application judge erred in pointing to “red flags” without addressing what was actually known by Ms. Green, and whether or not that knowledge would lead to reasonable grounds to believe that Ms. Foisey lacked capacity to enter into the release. The Court noted that the most alarming of red flags was the failure of Ms. Green and her lawyer to provide the PGT with information to address his concerns. However, the Court found that the lack of cooperation of Ms. Green and her counsel was not relevant to whether or not Ms. Green had reasonable grounds to believe Ms. Foisey incapable, and, it occurred many months after the execution of the release.

In reaching this conclusion, the Court noted that there is nothing inherently unusual or sinister about an estate trustee requesting a release from a beneficiary – such releases have been commonly used by estate trustees for decades.

Thanks for reading!

Sydney Osmar

 

11 Sep

The Appointment of Section 3 Counsel: Kwok v Kwok

Suzana Popovic-Montag Beneficiary Designations, Capacity, Estate & Trust, Estate Litigation, Estate Planning, Uncategorized Tags: , 0 Comments

The Substitute Decisions Act (the “SDA”) was passed in 1992. It governs what happens when a person becomes incapable of managing their own property or personal care. Under section 3 of the SDA, if the capacity of a person in a legal proceeding is in issue, the Public Guardian and Trustee (the “PGT”) may arrange for the legal representation of that person. Section 3 also provides that the person shall be deemed to have the capacity to retain and instruct counsel.

Although section 3 seems to be fairly straightforward, the details surrounding the appointment and position of section 3 counsel are somewhat obscure. Cases such as Sylvester v Britton and Banton v Banton have added some clarity to the role of section 3 counsel. The recent case of Kwok v Kwok provides a further illustration as to when section 3 counsel is to be appointed.

In Kwok v Kwok, Jiefu Kwok was involved in two motor vehicle accidents in 2011. He suffered a traumatic brain injury as a result and commenced two legal actions in relation to the accidents. A capacity assessment was conducted in 2014, which revealed that Jiefu was incapable of taking care of himself and managing his own property. In 2015, Jiefu’s son, Derek, was appointed as his guardian for property and personal care. Derek later filed an application to be released from these roles as he stated that it was putting a strain on his relationship with his father. Derek’s mother, Ellie, brought an application to take Derek’s place and be appointed as Jiefu’s guardian of property and personal care.

The PGT took the position that section 3 counsel should be appointed to represent Jiefu and obtain his wishes before Ellie was appointed as Jiefu’s guardian of property and personal care. The PGT was of the view that Jiefu’s capacity assessment conducted in 2014 was outdated and that a more limited guardianship might be appropriate for him.

Counsel for Derek and Ellie (the “Applicants”) argued that section 3 counsel is to be used in cases where a capacity assessment has not already been conducted. They added that, since a capacity assessment was already conducted in this case, the appointment of section 3 counsel was inappropriate. Moreover, a primary concern for the Applicants was the high costs associated with the appointment of section 3 counsel.

The Court considered the arguments of the PGT and the Applicants and noted the following about the role of section 3 counsel:

  • The appointment of section 3 counsel is a safeguard that protects the dignity, privacy and legal rights of a person who is alleged to be incapable
  • Section 3 of the SDA does not make the appointment of legal representation mandatory
  • In deciding whether to appoint section 3 counsel, the Court must consider the specific facts and issues in each case
  • The Court can appoint section 3 counsel even in cases where a capacity assessment has already been conducted or where there is an existing Court order declaring that a person is incapable

The Court concluded that the appointment of section 3 counsel would not be in Jiefu’s best interests and would be a waste of resources. The Court made this finding based on the following reasons:

  • There were no completing claims amongst Jiefu’s closest relatives as to who should be his legal representative. Both Derek and Ellie supported the appointment of Ellie as Jiefu’s guardian of property and personal care
  • There was no evidentiary basis to question the validity of the 2014 capacity assessment
  • A letter from Jiefu’s primary care physician regarding his current condition did not suggest that Jiefu’s condition had improved
  • Jiefu attended Court and expressed that he supported the appointment of Ellie as his guardian of property and personal care

As a result, Derek was released from his role as Jiefu’s guardian for property and of the person and Ellie was appointed in his place.

Kwok v Kwok adds to a growing body of cases examining the role of section 3 counsel. It provides that the Court can appoint section 3 counsel even in cases where a capacity assessment has already been conducted or where there is an existing Court order declaring that a person is incapable. Furthermore, it indicates that the wishes of the incapable person are to be given a considerable amount of weight in assessing whether section 3 counsel is appropriate.

 

For further reading on section 3 counsel, check out these other blogs:

Section 3 Counsel: Duties to the Client and the Court in Sylvester v Britton

SECTION 3 COUNSEL: A CATCH-22

Thanks for reading – have a great day!

Suzana Popovic-Montag and Celine Dookie

26 Aug

Judicial discretion to order passings of accounts

Nick Esterbauer Capacity, Estate & Trust, Passing of Accounts Tags: , , , , , , , , , , , , , 0 Comments

We often encounter situations where the administration of an estate is complicated by the fact that the deceased was married multiple times, and there is a clash between children from a prior relationship and a subsequent spouse (and/or his or her children).  Sometimes, a couple will be closer with one set of children, which may lead to disputes following both of their deaths.  Estate of Ronald Alfred Craymer v Hayward et al, 2019 ONSC 4600, was one such case, in which Joan and Ronald had been closer for much of their 32-year marriage with Joan’s children from a prior marriage.  After Joan and Ronald died in 2016 and 2017, respectively, a dispute arose between their adult children.

While Ronald’s will named his own children as beneficiaries of his estate, his Continuing Power of Attorney or Property (like Joan’s), named Joan’s daughter as alternate attorney for property, should his spouse be unable to act.   Joan had acted as Ronald’s attorney for property from 2006, during which he had suffered a stroke, until her death.  In 2011, Joan had transferred the couple’s matrimonial home, previously held jointly, to herself alone.  During this period, however, there had been no request by Ronald’s children for an accounting.  Joan’s daughter had subsequently acted as Ronald’s attorney for property and as estate trustee for Joan’s estate over the period of approximately eight months between the deaths of Joan and Ronald.

Ronald’s children sought a passing of accounts with respect to the management of their father’s property by Jane and her daughter and, specifically, challenged the change in title to the matrimonial home.  The Court referred to Wall v Shaw, 2018 ONCA 929, in stating that there is no limitation period to compel an accounting.  Accordingly, it considered the only bar to this relief to be laches and acquiescence.  Justice C.F. de Sa commented that the there was nothing improper in the manner in which the plaintiff had sought the accounting and, furthermore, that the delay was not unreasonable in the circumstances.  The Court permitted the claim regarding the matrimonial home to continue, but nevertheless declined to order a passing of  accounts:

…[O]rdering the passing of accounts is discretionary. And in my view, to require an accounting at this point would result in a clear injustice as between the parties.

[Joan’s daughter,] Linda, as Estate Trustee, is hardly in a position to account for Joan’s spending while she was alive. Yet, to require a passing of accounts at this point would subject every line of Joan’s spending (as Attorney for Property) to the court’s scrutiny.  Moreover, as the Estate Trustee, the Defendant would be liable to account for any unexplained expenditures.

Indeed, it is unclear that the spending was spurious given the nature of the relationship between Joan and Ronald. Joan would have been spending the money as his wife as much as his Attorney for Property.  The failure to keep detailed accounts is hardly suspicious given the circumstances here.

…In the circumstances, I will not order a passing of accounts.

This decision is interesting in that it clearly considers the practicality of a passing of accounts and the inability of the deceased attorney’s estate trustee to properly account in the absence of relevant records in determining that it would be unjust to order a passing of accounts, despite there being no other apparent legal reason not to do so.

Thank you for reading.

Nick Esterbauer

 

Other blog entries that may be of interest:

20 Aug

Parties to Bear Their Own Costs of a Contested Guardianship

Doreen So Capacity, Continuing Legal Education, Elder Law, General Interest, Guardianship, In the News Tags: , , , , 0 Comments

There was a recent decision of the Ontario Superior Court of Justice on the issue of costs in a contested guardianship proceeding.  Rather unusually, the endorsement in Howard Johnson v. Howard, 2019 ONSC 4643, dealt with the issue of costs after the parties have resolved the main dispute on consent.

In this case, there were two competing guardianship applications over Elizabeth.  The applicants on the one hand were Elizabeth’s daughter and son, Marjorie and Griffin, and on the other hand, Elizabeth’s other son, Jon.  All three of Elizabeth’s children were of the view that their mother was in need of a substitute decision maker for both the management of her property and for personal care.

While the endorsement does not specify who the competing applicants were seeking to appoint as Elizabeth’s guardian, the parties eventually settled on the appointment of CIBC Trust Corporation as Elizabeth’s guardian of property and all three children as Elizabeth’s guardians of personal care.  On the issue of costs, Marjorie and Griffin sought full indemnity costs from Jon while Jon sought substantial indemnity costs from Majorie and Griffin or, in any event, that he be indemnified by Elizabeth for any amounts not recovered from his siblings.

Pursuant to section 3 of the Substitute Decisions Act, 1992, Elizabeth was represented by counsel throughout the proceeding and on the issue of costs.  Submissions were made on Elizabeth’s behalf that she should not have to pay costs of the other parties or the outstanding balance of an invoice that was purportedly incurred by Elizabeth in a joint retainer with Jon.

The Court in this instance considered the modern approach to costs in estate litigation as set out in McDougald Estate v. Gooderham,  2005 CanLII 21091 (ON CA), with respect to Jon’s claim that Elizabeth ought to be responsible, at least in part, for his costs.  The court relied on D.M. Brown J.’s (as he was then) comments that the discipline imposed by the “loser-pays” approach to estate litigation applies with equal force to matters involving incapable persons citing Fiacco v. Lombardi, 2009 CanLII 46170 (ON SC).  Only costs incurred for the best interests of the incapable person could be justified as costs payable from the incapable’s assets.

In this case, the competing applications of the siblings were found to contain a number of ancillary issues beyond that of the appointment of a substitute decision maker for Elizabeth.  The Court was ultimately unable to see how Elizabeth would have derived any benefit from her children’s disputes.  Therefore, the children were all ordered to bear their own costs.  There was also no clear benefit to Elizabeth from the invoice that was issued to her prior to the appointment of section 3 counsel and Jon was ultimately left to pay that balance.

At the end of the day, the only costs borne by Elizabeth, as the incapable person subject to two competing guardianship applications, were the costs of section 3 counsel pursuant to the section 3(2) of the SDA.

Here is a Bon Appetit recipe for a frozen margarita pie that we could all benefit from.

Doreen So

16 Jul

Retrospective Capacity Assessments: Yay or Nay?

Kira Domratchev Capacity, Estate & Trust, Estate Litigation Tags: , , , , , , , , , , , , 0 Comments

The Ontario Superior Court of Justice recently made an important ruling on a voir dire in respect of Dr. Kenneth Shulman’s proposed expert testimony.

This ruling will be of particular interest to estate litigators as it addresses the inherent admissibility of retrospective capacity assessments, amongst other things.

The Court in this instance implemented a form of blended voir dire, wherein Dr. Shulman’s evidence would be received in its entirety and submissions would be made on the issue of admissibility of the expert testimony. In the event that the Court ruled that Dr. Shulman’s evidence was admissible, the evidence obtained during the voir dire would be incorporated as part of the trial record.

The Defendant, amongst other objections, took issue with Dr. Shulman’s testimony on the basis that his testimony was based on a retrospective capacity assessment which was problematic for the following reasons:

  • The proposed opinion was based on hearsay evidence and must therefore be excluded; and
  • Expert opinion evidence on retrospective testamentary capacity assessments constitutes novel or contested science and is therefore not reliable.

The Court did not accept that Dr. Shulman’s use of certain evidence that has not been proven, and has not been relied upon him for the truth of its contents, prevents the Court from admitting his expert opinion evidence at the threshold admissibility stage. In other words, any such issues could be addressed in reference to the weight of the proposed evidence.

Most interestingly, however, the Court noted that many of the types of medical and psychiatric opinions offered at trial are retrospective in nature and did not agree that retrospective capacity assessments are novel in Ontario courts. The Court specifically noted that the Defendant was unable to identify a single case, since retrospective testamentary capacity assessments were first considered by the courts, in which psychiatric expert opinion of retrospective testamentary capacity assessment has been ruled inadmissible.

In applying the admissibility test established in R v Abbey 2017 ONCA 640, the Court held that Dr. Shulman’s expert opinion satisfied the threshold requirement in the first step. In weighing the cost versus benefit of admitting Dr. Shulman’s report, the Court found that the evidence favoured the admission of Dr. Shulman’s evidence.

The Court made a ruling admitting Dr. Shulman as an expert geriatric psychiatrist to provide expert opinion evidence in the areas of geriatric psychiatry and retrospective testamentary capacity assessment.

This is an important ruling in the context of estate litigation given that in most instances, the capacity assessments that are usually relied on in the course of litigation are of a retrospective nature, since the subject of the assessment is most often deceased.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Expert “Hot-tubbing” and Its Use in Will Challenges

Psychological Autopsies and Testamentary Capacity

The Search for Contemporary Values: A Moving Target

 

25 Apr

An Ounce of Prevention…

Garrett Horrocks Capacity, Elder Law, General Interest, Health / Medical, In the News 0 Comments

My colleague, Sayuri Kagami, blogged Tuesday on efforts to use artificial intelligence in scanning for risk factors that have historically contributed to premature death.  Such efforts constitute a significant development in policy pertaining to preventive models of health care.

Broadly speaking, delivery of health care services can generally be categorized into one of two models.  The reactive model of health care is one based on acute care, and focuses on the treatment of illness as it arises and on an ongoing basis.  Your typical visit to the emergency room would generally fall within the scope of reactive health care.

The preventive model of health care, in contrast, is a proactive treatment model emphasizing, as one might expect, the prevention of illness and the mitigation of key risk factors contributing to chronic disease.  This model emerged largely as a result of the significant financial strain placed on public health care models in Ontario and abroad by the reactive model.

Treatment of acute and chronic illness on an ongoing and extended basis is, by most accounts, exceedingly expensive and inefficient.  In the context of estate planning, we are frequently exposed to the considerable financial and emotional tolls of treating Alzheimer’s disease and other illnesses impacting cognition.

Since the 1970s, policy makers have made significant strides in advocating for a treatment model that sets out the benefits of preventive health care in an attempt to reduce the burden of reactive treatment models.  In particular, this model focuses on steps that may be taken by individuals to reduce the risk of chronic illness in order to alleviate the strain placed on the public health care system.

A recent study performed by Cancer Care Ontario identified four main risk factors common to more than 90% of instances of chronic disease:

  1. Tobacco consumption;
  2. Alcohol consumption;
  3. Lack of physical activity; and
  4. Unhealthy eating habits.

Proponents of the preventive have therefore advocated for increased funding devoted to mitigating each of these factors in order to reduce reactive spending down the road.

If you didn’t pay attention to your grandmother while growing up, take it from the experts: an ounce of prevention is worth a pound of cure.

Thanks for reading.

Garrett Horrocks

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

CATEGORIES

ARCHIVES

TWITTER WIDGET