Tag: capacity assessments

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


14 Jul

Guardianships and Tests for Capacity

Joshua Eisen Guardianship Tags: , 0 Comments

Last week, news sources reported that a judge of the Los Angeles County Superior Court appointed a conservator over the affairs of former Eagles bassist, Randy Meisner.  The conservator was appointed to help make decisions about Mr. Meisner’s medical care, but not about his property.  The conservatorship is temporary for now, pending a further hearing this fall which may determine whether or not it should be made permanent.

In Ontario, our closest equivalent to a conservatorship is a guardianship.  There are two types of guardianships – one for personal care and another for property.  A person may apply to the Court to be appointed as someone’s guardian for property, for personal care, or both.  There is an alternative procedure, whereby the Public Guardian and Trustee will become a person’s statutory guardian upon receipt of a certificate of incapacity issued by a capacity assessor.

The tests for each kind of capacity are set out in Ontario’s Substitute Decisions Act, 1992.  A person is incapable with respect to making decisions about the management of property if that person is unable to understand information that is relevant to making a decision in the management of his or her property, or if the person is unable to appreciate the reasonably foreseeable consequences of a decision (or lack thereof).

On the personal care side, a guardian may be appointed if the person is incapable of understanding information relevant to making a decision concerning his or her health care, nutrition, shelter, clothing, hygiene or safety, or is if the person is unable to appreciate the reasonably foreseeable consequences of a decision with respect to any of these.

The California ruling dealt with personal care decisions but did not appoint a conservator for property.  Property decisions are sometimes thought of as being more cognitively demanding.  However, Mr. Meisner’s story is a good reminder that each kind of capacity is its own creature.  One cannot assume that a person who may be found incapable with respect to one function will necessarily be found incapable with respect to another.

Ontario’s Act creates another set of standards for the capacity to grant powers of attorney for property and yet another for granting powers of attorney for personal care.  A person may be incapable of managing property or personal care, but may still be capable of appointing another person to make those decisions on his or her behalf.  Creating a power of attorney while capable of doing so empowers the person to decide who will be responsible for making decisions and to provide the attorney with instruction or guidance in the event that difficult decisions need to be made.  Having powers of attorney in place can sometimes eliminate the need for guardianship proceedings, which can be a difficult and costly process.

30 Mar

Hull on Estates #411 – Capacity assessments under the Substitute Decisions Act

Hull & Hull LLP Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , , 0 Comments

Listen to Hull on Estates #411 – Capacity assessments under the Substitute Decisions Act

This week on Hull on Estates, Jonathon Kappy and Doreen So discuss the 411 on Saunders v. Vautier and the jurisdiction of the Court to order a capacity assessment under the Substitute Decisions Act, as well as the Courts of Justice Act in the context of the recent Justice Himel decision in Stoor v. Stoor Estate.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog page.

Click here for more information on Jonathon Kappy.

Click here for more information on Doreen So.

07 Feb

Cognitive Testing Copyright

Hull & Hull LLP Capacity Tags: , , 0 Comments

An online cognitive screening exam known as the "Sweet 16" (which we blogged on last year) is no longer available after the holder of copyright of the Mini-Mental State Examination ("MMSE") issued a copyright claim over the online test’s content.

In December 2011, developers of the Sweet 16 (while not admitting any breach of  copyright) permanently removed the cognitive impairment examination from the Internet in response to a copyright infringement accusation by the entity which manages the copyright license to the MMSE.  The Sweet 16 involves 16 elements including questions on basic orientation, items to remember, and counting sequences forwards and backwards.  Test developers provided open access to the Sweet 16 noting that copyright rules restricted the wider-known MMSE.

The MMSE was created in 1975 by Marshal Folstein, MD, and was freely available to doctors until its copyright license was actively managed in 2001.

Interestingly, most medical tests have a copyright. For example, the Framingham risk score, which accesses a patient’s risk of stroke; the FRAX, a predictor of fractures; and the Katz Activities of Daily Living assessment, which measures a person’s functional status all have copyrights which expire 70 years after the copyright owner’s death or longer in some cases.


David Morgan Smith – Click here for more information on David Smith


28 Apr

Capacity Litigators Beware: DSM-IV to be Revised

Hull & Hull LLP Capacity, Estate Planning, Health / Medical, In the News Tags: , , , , , , 0 Comments

A fifth edition of the Diagnostic and Statistic Manual of Mental Disorders (known as the "DSM-IV") is imminent, according to the chair of the task force responsible for the fourth edition, Dr. Allen Frances, quoted in this National Post article.  The DSM-IV is considered the most authoritative manual for defining and classifying mental illnesses. 

The relevance to capacity litigation is that the language doctors use to talk about patients and record their observations may change, perhaps significantly.  According to Dr. Frances, revisions to the definitions of attention-deficit hyperactivity disorder, autism and childhood bipolar disorder (i.e., manic depression) resulted in an unintended 40-fold increase in rates of diagnosed bipolar disorder.  A patient’s diagnosis is a major variable in his or her treatment.  There was a dramatic increase in prescriptions of anti-depressants over this period.

Revised definitions would not necessitate corresponding changes in legal capacity, of course.  The tests for the various levels capacity are functional in nature; they evaluate an individual’s observed ability to make decisions and do things.  Good capacity assessments tell a story, and the elements of the story must support the conclusions reached.  If not, the assessment will be rejected.  Re Koch is instructive on this point.  It is hard to read the judgment and imagine that including medical terms would have made any difference at all. 

On the other hand, changes to the DSM-IV may be very relevant for expert opinions on capacity given after an individual’s death, where the opinion relies heavily on medical reports and observations of treating physicians to assess an individual’s capacity at a specific time during that individual’s life. 

Have a great day,

Christopher M.B. Graham – Click here to learn more about Chris Graham.



08 Oct

Ordering a Second Capacity Assessment

Hull & Hull LLP Capacity, Estate & Trust, Power of Attorney Tags: , , , , , , , , , , , 0 Comments

Pursuant to section 79 of the Substitute Decisions Act, the court has discretion to order a capacity assessment of an individual if the person’s capacity is an issue in a proceeding under the SDA. The court must also be satisfied that there are reasonable grounds to believe that the person is incapable. 

Where a capacity assessment has already been obtained, the court will be reluctant to order a further capacity assessment of an individual, unless the court has, for example, concerns about the lack of detail or objectivity within the assessment that has already been obtained. 


In Forgione v. Forgione, the court was concerned about the adequacy of the assessment carried out by a medical doctor. The court did not know what background information the doctor had or what, if any, influence anyone other than one family member may have had on the process. The report was very brief and consisted largely of conclusions without analysis. There were a number of facts and conflicting versions of facts which, in the court’s view, warranted further examination because they raised questions about the capacity and vulnerability of the incapable. A second assessment was ordered.



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