ASSESSING CAPACITY IN CANADA: Putting the Lawyer at the Heart of Capacity Assessments Kimberly A. Whaley STEP London, Dec 7, 2018
Agenda Capacity in General: Statutory vs Common Law Medical / Legal Capacity Assessments Lawyer s Role Future of Capacity Assessments: Standardized Assessments? Page 2
Capacity in General Legally everyone is presumed capable No single definition Page 3
Capacity in General Capacity is decision specific Capacity is time specific Capacity is situation specific Page 4
Statutory Substitute Decisions Act, 1992 SO 1992, c.30 Capable = mentally capable Criteria manage property & make personal care decisions, grant POA for property or personal care Section 3 Counsel, special type of retainer Section 16 capacity assessment by a capacity assessor Page 5
Statutory Mental Health Act, RSO 1990, c.m.7 Admissions to psychiatric facilities Assessment patients capacity to manage property Formal rights advice required Assessed by a physician Page 6
Statutory Health Care Consent Act 1996, SO 1996, c 2 Sched. A Capable, informed, voluntary consent to treatment Admission to Long Term Care Facility Health treatment the health practitioner assesses patient s capacity. Page 7
Common Law Testamentary capacity criteria: Banks v Goodfellow Capacity to marry, separate, divorce, reconcile Capacity to instruct, gift, contract Page 8
Capacity Generally Starson v Swayze 2003 SCC 32 Ability to understand the relevant information surrounding the decision, and Ability to weigh the foreseeable risks and benefits of a decision or lack thereof Page 9
Medical / Legal Factors of mixed law and fact and application of evidence Assessed on both legal & medical factors Capacity assessments completed by different people: expert capacity assessors, doctors, lawyers, evaluators, etc. Page 10
Capacity Assessments Ontario: Capacity assessors certified by Ministry of the Attorney General Online list of qualified assessors roster Question: capacity assessment by such an assessor necessary? Who should be doing the assessing? Page 11
Case law Competing Assessments Orfus Estate 2013 ONCA 225 Testamentary capacity Retrospective vs Contemporaneous Court preferred contemporaneous despite flaws in the assessment Page 12
Yeas v Yeas 2017 ONSC 7402 Geriatric psychiatrist: incapable of personal care and property decisions Family physician: capable of personal care and property decision Capacity Assessor: capable of personal care and property decisions Lawyer: capable to make a Will Neurologist: retrospective assessment incapable of making a will Page 13
Lawyer s Responsibility Obligation of lawyer determine requisite capacity exists for decision or task at hand. High degree of professionalism in borderline cases May seek out a capacity assessment Allowance made for individual opinions of solicitors Weldon McInnis v John Doe Page 14
Solicitor s Negligence Capacity concerns: lawyer must meet required standard or face potential negligence claim Walman v Walman Estate: lawyer met with testator along, kept notes, asked questions about assets Did not address substantial wealth transfers, disinheritance, and health issues Page 15
Best Practices Meet with client alone Take comprehensive notes Determine relationships Client supported? Take not of indicators of capacity issues Be wary of overinvolved individual Follow your instincts Page 16
The Future of Capacity Assessments? Different tools and methods by medical experts Difficulties for a court when comparing conflicting expert opinions Standardized assessment tool: same criteria employed by medical experts Page 17
Standardized Assessment Assessment of testamentary capacity have been inconsistent Standardized approach assist both medical and legal Assessed contemporaneous or retrospectively Page 18
Standardized Assessment Contemporaneous Assessment Instrument (CAI) 1) Ability to communicate a choice 2) Ability to understand relevant information 3) Ability to appreciate his or her situation and likely consequences; and 4) Ability to manipulate information rationally (i.e. reasoning) Page 19
Standardized Assessment Cambridge Brain Sciences Dr. Adrian Owen www.cambridgebrainsciences.com Page 20
Modern Interpretation: Banks 1. Capable of understanding the act of making a will 2. Capable of understanding nature and extent of property and relevant disposition 3. Capable of evaluating claims of those expecting to inherit Page 21
Modern Interpretation Banks cont. 4. Capable of communicating a clear, consistent rationale for distribution of property 5. Free of mental disorder, including delusions, that influences the distribution of the estate. Page 22
Conclusion THANK YOU! Page 23