Wills, Trusts, Powers of Attorney and other legal documents may be subject to challenge on the grounds that the maker lacked the required mental capacity to be bound by them. Capacity is time and task specific and must be considered at the time of instruction and execution of the documents. For example, to execute a valid Will a testator must understand what a Will is and the effect that it has after death; must fully appreciate the property that the Will is intended to address and dispose of after death, and must be aware of and freely intend to make the gifts and other dispositions that the Will identifies. Disagreements over someone’s capacity to make these legal documents will ultimately be determined by a Court.
Issues may also arise as to the capacity of a loved one or family member to make decisions for themself. These issues can be stressful and difficult to manage. In Ontario, capacity is presumed unless determined otherwise. The Substitute Decisions Act establishes the legal criteria for determining when a person has the capacity to make decisions that are fundamental to his/her well-being, in particular the right to consent to or refuse medical treatment, choose housing arrangements and manage one’s money. Attorneys and Grantors may develop conflicts over whether a Grantor is able to make their own decisions. It is often challenging for an Attorney to know when to start acting. The conflict may lead to the necessity of a capacity assessment being conducted by a capacity assessor, (which may require a court order if the grantor will not consent to the assessment). A finding may be appealed to the Consent and Capacity Board.
We understand the tensions that the issue of capacity, regardless of how it arises, can present. We can advise and assist along the pathway to a solution that best meets the interests of the parties concerned. If an out of court solution is available, we have the experience to find it. If litigation is required, we have the team to provide efficient and cost conscious representation.
