{"id":2796,"date":"2019-09-05T22:48:11","date_gmt":"2019-09-06T02:48:11","guid":{"rendered":"https:\/\/www.cambridgellp.com\/?p=2796"},"modified":"2024-02-26T22:33:52","modified_gmt":"2024-02-27T03:33:52","slug":"have-you-lost-your-marbles","status":"publish","type":"post","link":"https:\/\/www.cambridgellp.com\/have-you-lost-your-marbles\/","title":{"rendered":"Have you lost your marbles?"},"content":{"rendered":"

In many lives there comes a point when a family member or close friend, often elderly, begins to show signs of decline in their cognition or ability to make decisions. These changes prompt a range of questions as to whether or not the individual in question has the capacity to live alone, continue to drive, or make sound decisions about how their money is managed.\u00a0 In many situations family members, service providers and professional advisors disagree about whether a person has the ability to appreciate the nature of the decision in question. As the aging population grows, disputes over a person\u2019s capacity to make certain decisions will become more and more prevalent.<\/p>\n

A recent 2019 decision of the Ontario Superior Court of Justice,\u00a0Adler v Gregor<\/em>,<\/em>\u00a0depicts a power struggle between two siblings trying to utilize capacity assessments against each other in litigation over which of two different power of attorney documents executed by their 90 year old mother was valid. In 2015, Mrs. Adler granted one of her two her children sole power of attorney for property and personal care. These documents were only to be used if a capacity assessor or physician deemed Mrs. Adler to no longer have capacity. In 2017, at the request of the sister who was selected as attorney in 2015, a capacity assessor found Mrs. Adler incapable.<\/p>\n

Later that year, Mrs. Adlers\u2019 other daughter took her to a new lawyer to execute new power of attorney documents appointing both siblings as her power of attorney for property and personal care. She also obtained a capacity assessment that stated Mrs. Alder had the legal capacity to make the new power of attorney documents. The first important takeaway here is that the law recognizes that even though a person may be declared incapable of making financial decisions they still may be capable of making a power of attorney for property. In other words, the two tasks require a different level of cognition. That is, managing one\u2019s assets requires a higher level of cognitive function than deciding who to select to manage one\u2019s assets. Many people, including professional advisors, often are not aware of this construct.<\/p>\n

Litigation ensued over which power of attorney was valid and effective. The Court was ultimately asked to determine if the 2017 power of attorney documents executed were valid, amongst other issues.\u00a0In determining that Mrs. Adler did not have capacity to grant the 2017 power of attorney documents, and they were therefore invalid, the court made key takeaway points about capacity assessments. Both siblings were heavily involved in providing input into the draft reports prepared by their respective capacity assessors; this bias led to the court rejecting both reports and deeming them unreliable.<\/p>\n

The presumption of capacity is legally rebuttable but not simply because an individual is elderly or has a diagnosis which may affect their capacity (i.e Alzheimer\u2019s). Each case is assessed on an individual basis, and incapacity concerning a decision must be task and time specific. To determine requisite decisional capacity, an examination of the following criteria is used:<\/p>\n