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Month: December 2019

Capacity for Powers of Attorney: A Legal Test

 

 

 

 

 

 

 

 

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

Last month we looked at the capacity for a will. Now we will look at the capacity for powers of attorney, mainly the power of attorney for property and power of attorney for personal care.

Power of attorney for property

Section 8 (1) of the Substitute Decisions Act, 1992 (the Act) states:

“A person is capable of giving a continuing power of attorney if he or she,

  1. knows what kind of property he or she has and its approximate value;
  2. is aware of obligations owed to his or her dependents;
  3. knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in
  4. knows that the attorney must account for his or her dealings with the person’s property;
  5. knows that he or she may, if capable, revoke the continuing power of attorney;
  6. appreciates that unless the attorney manages the property prudently its value may decline;
  7. appreciates the possibility that the attorney could misuse the authority given to him or her”

 

Power of attorney for personal care

Section 47(1) of the Act states:

“A person is capable of giving a power of attorney for personal care if the person,

  1. has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and
  2. appreciates that the person may need to have the proposed attorney make decisions for the person”

 

The Act further states:

A person is capable of revoking a continuing power of attorney if he or she is capable of giving one (s.8(2)).

A continuing power of attorney is valid if the grantor, at the time of executing it,  is capable  of giving it, even if he or she is incapable of managing property (s. 9(1)).

The continuing power of attorney remains valid even if, after executing it, the grantor becomes incapable of giving a continuing power of attorney (s. 9(2)).

Some would say that the requisite capacity to grant a power of attorney for property is “higher” and requires a greater ability to understand and appreciate compared to the capacity to grant a power of attorney for personal care. However, in Covello v. Sturino [2007] O.J. No. 2306, Justice Rose Boyko stated that the requisite capacity shouldn’t be judged as “higher” or “lower” but simply different.

In the case of Knox v. Burton [2004] O.J. No. 1267, upheld by the Court of Appeal, Petronella Knox was 80 years old and following a family conflict, three capacity assessors were retained, whereby one found her incapable and two found her capable.

It was decided that she was capable based on the presumption of capacity that had not been rebutted by any compelling evidence. It was stated that there is no value describing capacity as high or low. A person who is cognitively impaired can fluctuate, meaning they can be capable at one time and incapable at another.

This case shows that an expert opinion may not be definitive. The capacity assessor should focus on the person’s ability to reason and understand rather than the family dispute. The question of capacity is a finding of fact.

 

A legal test

The capacity to grant or revoke a power of attorney is a legal test. It is up to the lawyer drafting the power of attorney documents to determine capacity. If the lawyer is satisfied that there is capacity and has documented his/her discussion with the client, there may not be a need for a capacity assessment.

If the lawyer has doubts, a capacity assessment is helpful, although the person with questionable capacity would need to agree to this assessment. It is the duty of the lawyer to ensure the client  is capable of granting either kind of power of attorney before arranging the signing of these documents. Lawyers should be well versed in the criteria for capacity, conduct a thorough interview and ultimately use good judgment when deciding whether a client is capable.

 

 

Capacity for a Will: The Banks Test

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

By Kimberly Gale and Matt McEnery

The test for testamentary capacity was established in Banks v. Goodfellow L.R., [1870] C.C.S. NO. 69, and has survived until the present day. While the case has endured as the benchmark of testamentary capacity,  much  due to the judicial foresight of Chief Justice Alexander James Edmund Cockburn, it has not been without criticism. It is hard to imagine Justice Cockburn foreseeing the depth of medical research into diseases such as Alzheimer’s, which we now rely upon in the present day, but the considerations he included in  his test remain.

The practitioner will inevitably be faced with clients whose capacity will be in question and a thorough reading of this case is important while considering instruction. With that said, a concise capacity checklist based on the case should be well versed in every practitioner’s mind.

Prior to Banks, under English statute, all testators were required to be of sound mind and the courts would interpret as such. Banks changed this interpretation that capacity could not be an automatic assumption from a diagnosis. Justice Cockburn formulated his test not on the fact that an assumption was “diagnosis-bound” but that no assumption would be based on a diagnosis.

While Mr. Banks had frequented the “country lunatics asylum,” he had managed his financial affairs carefully and shown himself to be capable in his business dealings. After the passing of his sister, he had changed his will in favour of the daughter of his deceased sister, which the court deemed as a rational change. The court will always try and respect the testator’s wishes.

Checklist

As stated in Banks:

  1. The testator understands the nature of making a will and its effects;
  2. The testator understands the extend of the property bring disposed of;
  3. The testator understands the nature of the act and its effects;
  4. The testator appreciated the claims to which he or she ought to give full effect;
  5. No delusion influences his or her will in disposing of property and brings about a disposal of which, if the mind is sound, would not have been

 

Evidently, the ability to provide instruction for a will is not enough. The testator must understand what they are saying while giving instructions. If a practitioner feels uncomfortable with instructions, it is best to immediately stop work and carefully note all the issues or request a capacity assessment.

While a capacity assessment is persuasive evidence, it is not always determinative. In the British Columbia’s Supreme Court 2002 decision Fuller Estate v. Flurry 2002 BCSC 1703, the testator had   a falling out with his children and went to a lawyer to change his will and disinherit them. The solicitor was concerned over this radical change and asked the testator to seek a medical opinion      as to his capacity. The testator obtained this medical evidence and a new will was made.

The court decided that his delusions were not easily recognized and despite his medical record, the will was invalid due to his delusions. Evidently, a doctor’s note is not the only piece of evidence the court will consider when determining capacity of a testator.

In Sweetnam v. Williamson Estate 2017 ONCA 991 the testator, who was suffering from terminal illness, made two separate wills on separate dates leaving different portions of his estate.

Applying the test from Banks and following the leading jurisprudence, the Ontario Court of Appeal found that the trial judge had been correct in finding that the testator lacked capacity.

It can be argued that Banks should be updated to address the modern complexities of medical science pertaining to capacity. For example, Justice Cockburn’s test could not have envisioned the medical difference between dementia and Alzheimer’s disease and was more narrowly focused on psychosis.

However, it appears that Banks remains the test for capacity which takes a holistic approach as medical evidence, if available, is not the only evidence that will be relied upon.