Tag: capacity

10 Sep

Substitute Decision-Making Disputes: The Best Interests of the Incapable is Key

Rebecca Rauws Power of Attorney Tags: , , , , , , , , , , , 0 Comments

I have previously blogged about Vanier v Vanier, a decision of the Ontario Court of Appeal relating to a dispute amongst attorneys, in which the Court of Appeal agreed with a statement by the motion judge that the attorneys had “lost sight of the fact that it is [the incapable’s] best interests that must be served here, not their own pride, suspicions, authority or desires”. Unfortunately, it is often the case that in disputes amongst family members over the management of an incapable family member’s care or property, the incapable’s interests may be overshadowed by the fight amongst the other members of the family.

The recent Ontario Superior Court of Justice decision in Lockhart v Lockhart, 2020 ONSC 4667, appears to be another similar situation.

The applicant, Barbara, and the respondent, Robert, are children of Mrs. Lockhart. Mrs. Lockhart was 89 years old at the time of the decision. A number of years before, she had contracted bacterial meningitis and had suffered some long-lasting effects that impacted her cognition. Mrs. Lockhart’s husband predeceased her on October 2, 2018. Prior to his death, he had made personal care and treatment decisions for Mrs. Lockhart when she was not able to do so herself. After Mrs. Lockhart’s husband’s death, Barbara was unable to locate a power of attorney for personal care for Mrs. Lockhart; accordingly, Barbara and Robert proceeded to make personal care decisions on Mrs. Lockhart’s behalf, jointly.

However, in December 2018, Robert arranged to have Mrs. Lockhart sign a power of attorney for personal care and a power of attorney for property naming him as her sole attorney (the “2018 POAs”). Barbara was not aware of the 2018 POAs, and was not involved in their preparation or execution. Barbara did not even become aware of the 2018 POAs until April 2020 when Robert revealed them to her in the midst of a dispute between Barbara and Robert relating to Mrs. Lockhart’s care. Barbara subsequently challenged the validity of the 2018 POAs on the basis that, among other things, Mrs. Lockhart was not capable of granting them.

The court found that the 2018 POAs were of no force and effect, and were void ab initio. The court was also asked to determine which of Barbara and Robert would be authorized to make decisions on Mrs. Lockhart’s behalf under the Health Care Consent Act, 1996 (the “HCCA”). Each of Barbara and Robert took the position that they should have sole decision-making authority.

Notably, the court stated specifically that “[t]his dispute has less to do with Mrs. Lockhart’s interests and more to do with a power struggle between two siblings.” Given this outcome, and the facts leading to the litigation, I found the solution arrived at by the court interesting. The court determined that both Barbara and Robert are authorized to make personal care, health care, and treatment decisions under the HCCA, on behalf of Mrs. Lockhart, jointly. It appears that the court was satisfied that both of Barbara and Robert would exercise that authority in Mrs. Lockhart’s best interests, notwithstanding the dispute between them that lead to litigation. Other than the major disagreement between Barbara and Robert that lead to the litigation, the court found that “it appears that they have, in the main, come to decisions that have been in Mrs. Lockhart’s best interest and have kept her safe.” This historic ability to make joint decisions seems to have been sufficient for the court to decide that Barbara and Robert should continue doing so going forward.

Thanks for reading,

Rebecca Rauws

 

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08 Sep

Older Adults and Capacity to make Decisions: Protection vs. Autonomy

Rebecca Rauws Elder Law Tags: , , , , , , , , , , , , , 0 Comments

As we age, many of us begin to experience the normal consequences of aging, including some memory loss. Unfortunately, many of us may end up suffering from Alzheimer’s and related dementias. As a result, capacity has become a bigger problem among seniors.

There are ways to manage decision-making for a senior who has lost capacity to make his or her own decisions about care or property. If the person executed a power of attorney, their attorney can step in. If there is no power of attorney, a guardian can be appointed by the court. However, the imposition of a substitute decision maker can be a significant restriction on an older adult’s liberty, and some seniors may resist that imposition.

An article in The Walrus earlier this year considered this issue, and the impact a finding of incapacity can have on a senior’s autonomy in Canada.

One of the concerns discussed in the article is that “some seniors find that, once declared incapable, they are unable to challenge the decision.” In Ontario, we have the Consent and Capacity Board, which is an independent tribunal that, among other things, reviews various determinations regarding an individual’s capacity. However, this is apparently a rarity in Canada. The only other similar body is located in the Yukon.

Another issue raised by the Walrus article is with the lack of a standardized system for assessing capacity. The person doing the assessment can vary (doctor, nurse, social worker, etc.), as well as the tests conducted. This is made even more complicated by the fact that there are differing levels of capacity for different tasks (e.g. making a Will, managing property, getting married, granting a power of attorney for personal care).

Unfortunately, the lack of attention paid to the issue of aging and capacity appears to be systemic. As cynically, but perhaps also realistically stated in the Walrus article: “It can seem like a great deal of attention is paid to other institutions that house vulnerable segments of the population, such as children in daycares. But there’s no future in aging; there is next to no potential that a senior might one day cure cancer or be the next prime minister. Reform in elder care may be desperately needed, but it hasn’t been forthcoming.”

There is a fine balance to be struck between restricting seniors’ autonomy, and protecting vulnerable people. A collaborative “supported decision-making model”, as discussed in the article may be one way of doing this. I hope that as more attention is drawn to these issues, there will be greater awareness, and increased progress and reform for our seniors.

Thanks for reading,

Rebecca Rauws

 

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28 Aug

Incapacity, Limitation Periods and Litigation Guardians: Complications Galore

Paul Emile Trudelle Litigation Tags: , , , , 0 Comments

Under the Limitations Act, 2002, most actions are subject to a two-year limitation period. However, the limitation period does not run during any time in which the person with the claim is incapable of commencing a proceeding AND not represented by a litigation guardian in relation to the claim. A person is presumed to be capable unless the contrary is proved.

What happens when a claim is commenced, but not all defendants are named? This issue arose in the recent decision of Wood v. David Mitchell et al., 2020 ONSC 4903 (CanLII). There, the plaintiff suffered a stroke. He sued a number of defendants in relation to his medical care. One doctor was referred to in the Statement of Claim, but not named as a party. Three years after the claim was started, the Public Guardian and Trustee was appointed as the plaintiff’s litigation guardian. The PGT moved to add the doctor as a defendant. The doctor moved to strike the claim on the basis of the passage of the limitation period.  The plaintiff resisted, taking the position that the plaintiff did not have capacity when the claim was commenced, and did not have a litigation guardian.

The doctor raised two main points. Firstly, the doctor sought information about communications between the plaintiff and his initial lawyers going to his capacity at the time. Secondly, the doctor argued that the plaintiff was represented initially by a “de facto” litigation guardian, a Mr. McQueen.

The decision addressed these issues from the perspective of a motion to compel answers to questions and further production. The plaintiff had refused to answer questions about his and Mr. McQueen’s communications with his initial lawyers and to produce the lawyers’ file on the basis of relevance and privilege.

At first instance, the Master disallowed the questions. On appeal, the court ordered that the lawyers’ files as they relate to the plaintiff’s capacity and to Mr. McQueen’s dealings with the lawyers must be produced, even if privileged.

The court held that on the first issue, as the plaintiff put his capacity in issue, information that his lawyers had about his capacity was to be produced. The court stated that the “elephant in the room” was “what were the plaintiff’s initial lawyers thinking” when they commenced the claim? Did they believe that the plaintiff had capacity? If so, what was that belief based on?

On the second issue, the court referred to the Court of Appeal decision of Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385 for the proposition that a de facto litigation guardian could recommence the running of the limitation period. In Azzeh, the court held that a person could be considered litigation guardian, even if not formally appointed, if they held themselves out as litigation guardian. In Wood, the court held that the definition of “litigation guardian” might even by broader.

As can be seen, the issues that arise in litigation where the capacity of a party may be in issue can be complex. The courts must walk a fine line of ensuring that the right to sue is not taken away from an incapable person, while ensuring that the rights of third parties, including the right to the protection of limitation periods, are safeguarded.

Thank you for reading.

Paul Trudelle

05 Aug

Decision-making by an Attorney for Personal Care

Rebecca Rauws Power of Attorney Tags: , , , , , , , , , , , , , 0 Comments

The job of being an attorney for personal care for an incapable person is not an easy one. The attorney often has to make difficult decisions regarding an incapable person’s medical care and treatment, personal care, food, clothing, and shelter. A particularly difficult decision that can arise in the case of older adults is the decision of whether an older incapable person should be placed in a retirement or long-term care home.

I recently came across a decision that considered a personal care attorney’s decision to move his mother, Ann, into a long-term care facility. As set out in Corbet v Corbet, 2020 ONSC 4157, prior to the move, Ann had been living with her personal care attorney’s son (Ann’s grandson), and his spouse. The personal care attorney lived in the USA. The grandson and spouse were the defendants to an action brought by the personal care attorney, and the defendants had brought the motion that was dealt with in the decision. The motion sought an order that Ann return to live with the defendants.

The Corbet decision discussed the powers and duties of an attorney for property, as governed by the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Section 66 of the SDA provides that a personal care attorney must exercise his or her powers and duties diligently and in good faith. If the attorney knows of prior wishes or instructions of an incapable person, they shall make their decision in accordance with those prior wishes or instructions. If the attorney does not know of a prior wish or instruction, or if it is impossible to make the decision in accordance with the wish or instruction, the attorney shall make the decision in the incapable person’s best interests. Although making a determination of what is in the incapable person’s best interests can be difficult, the SDA does set out the factors that the attorney must consider, as follows:

  • the values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;
  • the person’s current wishes, if they can be ascertained; and
  • the following factors:
    • (i) Whether the guardian’s decision is likely to,
      • improve the quality of the person’s life,
      • prevent the quality of the person’s life from deteriorating, or
      • reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.
    • (ii) Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.

Ultimately, the court determined that it was not prepared to grant the order sought by the defendants. Some of the factors that were determinative included the following:

  1. Ann had entrusted her only son as her attorney for personal care.
  2. The court should not attempt to micromanage an attorney’s day-to-day handling of an incapable person’s affairs unless there is clear evidence the attorney is not acting in good faith.
  3. Before making the decision to move Ann to the long-term care facility, the attorney consulted with Ann’s family doctor, and had a comprehensive assessment of the defendants’ home done by the LHIN case manager.
  4. Although Ann had expressed that she wanted to “go home”, the court found that Ann perceived her home as the home she had shared with her late husband, and not the defendants’ home.
  5. There was no evidence that the personal care attorney failed to consider the best interests criteria as set out above.
  6. There were allegations that the defendants had mistreated or neglected Ann, and that they had misused or misappropriated her money. As a result, it remained to be determined whether they were “supportive family members” with whom the attorney has a duty to consult under the SDA.

Attorneys for personal care would be well-advised to carefully consider their decisions, in light of the guidelines set out in the SDA, and to document their considerations in making decisions on behalf of an incapable person.

Thanks for reading,

Rebecca Rauws

 

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04 Aug

When does an Attorney Accounting Period Start?

Rebecca Rauws Passing of Accounts Tags: , , , , , , , , , , , , 0 Comments

Sometimes there is a grey area when it comes to a person’s loss of capacity, and the time when his or her attorney for property first began to act on an incapable’s behalf. In such a situation, it can be difficult to determine the starting date for an attorney’s fiduciary accounting period.

The recent decision of The Public Guardian and Trustee v Willis at al, 2020 ONSC 3660, dealt with this kind of situation. One of the issues was whether the respondent should be required to pass his accounts for the period before he became the attorney for property for his mother, Mrs. Willis.

The respondent was his mother’s only living child, and was acting as her attorney pursuant to a power of attorney for property dated May 2, 2018. Mrs. Willis was assessed as incapable of managing her property in September 2018, but the decision notes that she had been “clearly suffering from some cognitive deficits prior to June 2018”.

The Public Guardian and Trustee (the “PGT”) sought to have the respondent provide an accounting back to January 1, 2015, because the respondent had arranged several mortgages on his mother’s behalf in that period. The respondent, however, only agreed to pass his accounts starting from May 2, 2018 when he became his mother’s attorney for property. One of the main reasons that the respondent did not want to pass his accounts prior to that period was due to the expense, because it was clear that Mrs. Willis was insolvent, and the respondent would likely have to personally bear the costs of passing his accounts. The PGT clarified during the hearing that it was not seeking court format accounts for the period from 2015-2018, but only “justifiable explanations of money coming in and out of his mother’s RBC account and how mortgage advances were spent plus all relevant disclosure.”

The court found that the respondent had assisted his mother with paying bills and arranging mortgages prior to the time that she was assessed as incapable. It was also noted in the decision that there was “no doubt” that even while Mrs. Willis was capable, she was unsophisticated, vulnerable, and relied on the respondent. The respondent also had access to his mother’s bank account before January 1, 2015.

The court held that, even if an individual is not specifically appointed in a fiduciary role (such as an attorney) one must look at the types of duties that the individual was carrying out to determine if they were acting in a fiduciary capacity. On this basis, the court found that the respondent had been acting as a fiduciary for Mrs. Willis for some time, and determined that he should provide detailed explanations of financial transactions upon the PGT’s request from January 1, 2015 to May 1, 2018 (in addition to the passing of accounts to which the respondent had consented starting from May 2, 2018).

Thanks for reading,

Rebecca Rauws

 

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29 Jun

Don’t Worry Be Happy

Noah Weisberg Capacity, Health / Medical Tags: , , , , , , 0 Comments

Yes, you’re reading this blog on a Monday.  As week days go, Monday isn’t nearly as fun as a Thursday, or Friday.  But that doesn’t mean you should be unhappy.  A recent study purports that repetitive negative thinking is linked to cognitive decline.

The authors of the study propose that repetitive negative thinking may be a new risk factor for dementia.  Based on various tests, the study found that when compared to non-pessimists, people who think negatively have a greater buildup of certain proteins in the brain that cause Alzheimer’s disease (the most common type of dementia), a worse memory, and greater cognitive decline.

Based on this correlation, it is believed important to think happy thoughts.  Whether you are a glass half empty or half full kind of person, the brain can be trained to be more optimistic.  This can be done in a number of ways, including:

  • meditating – one study found that only 30 minutes a day over a two week period produced a measurable change in the brain
  • practicing gratefulness – taking a few minutes each day to write down what you are thankful for
  • reframing negative thoughts –changing your perspective on a situation to give more of a positive or beneficial meaning to you

As Bobby McFerrin sings, ‘In every life we have some trouble / But when you worry you make it double / Don’t worry, be happy / Don’t worry, be happy now’.

Happy Monday,

Noah Weisberg

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12 Jun

Dealing with the Body: An Often Difficult Task Made More Difficult

Paul Emile Trudelle Estate Planning Tags: , , , , , , 0 Comments

One of the primary and often urgent duties of an Estate Trustee is to dispose of the deceased’s body. Often, issues arise with respect to the proper disposal of the deceased’s remains: how it is to be done, and by whom. These issues are exacerbated when the deceased dies intestate. No one has the immediate authority to make the necessary decisions.

The difficulties that can arise are illustrated in the companion decisions of Re Timmerman Estate, 2020 ONSC 3424 (CanLII) and Re Timmerman Estate, 2020 ONSC 3425 (CanLII).There, Marguerite died on October 16, 2019. She was survived by a daughter, Shannon and a son, Craig. Craig died shortly thereafter, on November 12, 2019. Both died without a will and with only nominal assets.

Marguerite’s sister (Craig’s aunt) applied for a Certificate of Appointment as Estate Trustee for both estates. However, she did not have Shannon’s consent or a Renunciation from Shannon, as required by the Rules of Civil Procedure. She applied to the court to dispense with these formalities.

There was evidence before the court that Marguerite wished to be cremated. Shannon objected to this. However, there was evidence that Shannon may have had capacity issues. After raising her objection to the cremations, Shannon appears to have disappeared.

The judge hearing the applications noted that the bodies had remained in a hospital morgue for over 7 months, a delay that was “unconscionable” and “intolerable”, and due for the most part to difficulties in contacting Shannon despite reasonable efforts.

The court granted the applications notwithstanding the lack of consent or a renunciation from Shannon, citing Rules 2.01 and 2.03, which allow a court to dispense with the strict compliance with the Rules of Civil Procedure where it was necessary and in the interest of justice. “It is in no-one’s interests to delay the administration of this estate and, hence, the removal of the bodies and their cremation or burial, because of Shannon Timmerman’s failure or inability to take any steps herself to address the need to attend to these formalities.”

In both estates, the court directed the Estate Trustee to make best efforts to bring the Certificate of Appointment to the attention of Shannon before the bodies were finally laid to rest. However, this requirement was not to unduly delay things further. If Shannon could not be located using best efforts, the Estate Trustee was to proceed with the disposal of the remains as she saw fit.

See here for our blog on The Duty to Dispose of the Body.

Thanks for reading.

Paul Trudelle

07 May

How Important is it to Provide Evidence of Urgency During COVID-19?

Rebecca Rauws Uncategorized Tags: , , , , , , , , , , 0 Comments

As a result of the COVID-19 pandemic, pursuant to the Notice to the Profession, the courts are presently restricted to hearing mainly urgent matters. For civil and commercial matters, this includes “urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.” There is also a broad ability for the court to hear any other matter that it deems necessary and appropriate to be heard on an urgent basis, but these matters will be strictly limited.

In a recent decision, Weidenfeld v Parikh-Shah, 2020 ONSC 2401, the court considered two urgent motions brought by the plaintiff and the defendants, respectively. The defendants sought to have monies that had been paid into court several years ago, paid out from court. The plaintiff sought, among other things, an order prohibiting the payment out of the monies. The decision did not provide details of the background of the litigation between the parties.

The court stated that the parties’ first step is to establish that their respective motions are, in fact, urgent. The court provided some guidance as to what is needed in this regard:

“The obligation is on the moving party to provide cogent, particular and specific evidence to show the court that the relief requested is urgent. Speculative, supposition or theoretical evidence is not good enough. The present environment and limited use of judicial resources mandate that the urgency must be real and immediate.”

Unfortunately for the parties in this case, the court found that their affidavit evidence did not provide cogent evidence to satisfy the court that the relief sought was urgent. The reason for which the defendants had brought the motion seeking to have money paid out of court was not set out in the decision.

The court did consider the category of urgent matters where “immediate and significant financial repercussions may result”, and specifically mentioned (a) matters that may put a person in financial jeopardy; (b) the funding of a business, business venture or construction project, failing which the financial viability of the project is in jeopardy; and (c) the necessity of a person to have resources to pay expenses or an order for the health and safety of a person; as issues that would meet the test of “immediate and significant financial repercussions”.

In the current circumstances, we are continually adjusting to new ways of doing things. This includes bringing court proceedings. Based on the Weidenfeld v Parikh-Shah decision, it is clear that parties will need to provide clear and sufficient evidence to satisfy the court as to the urgency of the matter in order for the court to hear the proceeding while court operations are restricted.

Thanks for reading,

Rebecca Rauws

 

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05 May

Are Virtual Wills a Good Idea?

Rebecca Rauws Estate Planning, Wills Tags: , , , , , , , , , , 0 Comments

As we know, due to the COVID-19 pandemic, Ontario has passed emergency legislation allowing for Wills and powers of attorney to be executed and witnessed virtually, and in counterparts. This legislation will remain in effect for the duration of the declared emergency. Although Premier Doug Ford recently announced a plan for reopening Ontario, the timeline for doing so is still vague, and it’s unclear when the emergency will be declared to be at an end. Once the emergency is over, the normal rules for execution of Wills and powers of attorney, as set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26, and the Substitute Decisions Act, 1992, S.O. 1992, c. 30, will once again govern how such documents may be validly executed.

Before coronavirus became such a pressing concern, there was some discussion in the United States, of allowing Wills executed electronically to be considered valid testamentary documents. According to this article in The New York Times, entitled “A Will Without Ink and Paper”, at the time the article was published in October 2019, some states already had laws to allow e-signatures on Wills, and others were looking to adopt similar laws this year.

In the US, the Uniform Law Commission has proposed the Uniform Electronic Wills Act, which is intended to serve as a model for states who wish to enact such legislation. The law would allow testators to complete the entire Will-making and execution process online, without a lawyer or notary present. There are already online services, currently serving states that already have laws allowing electronic Wills, which provide a platform for the creation of these digital Wills.

According to The New York Times article, the process of creating an electronic Will involves a testator creating a Will online, and then having a video-conference call with a notary. The notary will review the document, ask questions of the testator, notarize it, and send it back.

Although the concept of electronic Wills seems convenient, the costs may ultimately outweigh the benefits. As one lawyer quoted in the article states, signing a Will “is not like getting toilet paper delivered by Amazon instead of going to a supermarket…This is a solemn thing that people don’t do every day.” The “inconvenience” of consulting a lawyer, having a Will professionally drafted, and executed in the traditional way, will likely be worth the trouble for most testators, particularly when you consider that this is not a task that needs to be done repeatedly, at frequent intervals (like going to the grocery store to buy toilet paper).

The article mentions a number of points as to why electronic Wills may not be such a great idea. Without a lawyer’s involvement, there is a heightened risk for undue influence to go undetected. Testators with significant assets that may be structured in complicated ways, or who have unique family situations, such as a blended family, are not likely to be well-served by the creation (let alone the execution) of a Will online, without estate planning advice from a lawyer.

Desperate times call for desperate measures, and it is helpful to have alternate methods of executing Wills and powers of attorney in these unprecedented times. But when life goes back to normal, I think we can be comfortable with the return to the “old-fashioned” way of executing Wills and powers of attorney. Although some may consider the process to be cumbersome, the added protection for testators, and the comfort of an estate plan that takes into account each testator’s unique situation, is worth the price.

Thanks for reading,

Rebecca Rauws

 

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04 May

What are the Risks of Virtually Witnessing a Will or Power of Attorney?

Rebecca Rauws Estate Planning, Power of Attorney, Wills Tags: , , , , , , , , , , , , , 0 Comments

Natalia Angelini recently blogged about some helpful tips from LawPRO on how to minimize the risk when virtually witnessing Wills and powers of attorney. On April 24, LawPRO posted another helpful article about the risks of “renting out” your signature as a virtual witness.

The emergency legislation requires that one of the witnesses to a Will that is executed by means of audio-visual communication technology (which now temporarily meets the Succession Law Reform Act, R.S.O. 1990, c. S.26 requirement that the testator and witnesses be “in the presence of” each other), be a Law Society licensee. This means that some of us may be asked to be witnesses to a Will or power of attorney that we did not prepare ourselves. However, as LawPRO points out, simply being a witness does not necessarily mean that we will not be held responsible if there are problems with the Will or power of attorney.

Some of the issues that may arise could include the following:

  • Problems with the Will or power of attorney not being executed properly, in accordance with the requirements for due execution and the specific requirements of virtual execution pursuant to the temporary legislation.
  • The Will or power of attorney not reflecting the testator or grantor’s wishes. This may arise if a testator or grantor prepares their own Will or power of attorney from an online service or kit, resulting in a document that is likely not tailored to the testator or grantor’s particular situation, financial circumstances, and wishes.
  • Technical errors in the document, such as the omission of a residue clause, which can drastically impact the distribution of the testator’s assets.

LawPRO has provided some tips for how to protect yourself if you are asked to be a witness to a Will or power of attorney that you did not prepare (although the tips seem equally applicable if you did prepare the document in question):

  • Take detailed notes.
  • Send a reporting letter following the execution of the document and confirm the scope of your retainer.
  • Record the signing (with the client’s permission).

You may also consider having the testator or grantor sign a limited retainer agreement, before you witness the Will or power of attorney, which explicitly sets out that you have been engaged only for the purpose of witnessing the document, and not to review it or provide any legal advice.

Thanks for reading, and stay safe!

Rebecca Rauws

 

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