Justice Penny was critical of the use of capacity assessments in an acrimonious Power of Attorney dispute between two sisters in the recent case of Adler v Gregor 2019 ONSC 3037. As noted by Justice Penny, the capacity assessments were improperly obtained as ammunition to benefit the sisters’ positions in the litigation and not for their mother’s benefit.
Two sisters were at odds over who should act as their 90-year-old mother’s attorney under a Power of Attorney for Personal Care and Property. The mother had executed Powers of Attorney in 2015 appointing one sister as the sole attorney with directions that the documents were only to be released upon the finding of incapacity of the mother by a physician or a licensed capacity assessor.
After significant conflict between the sisters, in August 2017, the attorney sister asked a capacity assessor to complete an assessment of their mother. The assessor concluded the mother was incapable of managing property and incapable of granting a Power of Attorney for Property.
In September 2017 the non-attorney sister took the mother to a new lawyer (whom the mother did not know) and the mother executed new Powers of Attorney appointing both sisters jointly as the mother’s attorneys. After retaining estate litigation counsel, the same sister obtained a capacity assessment of her mother in October 2017, which concluded that the mother was capable of granting Powers of Attorney for Property and Personal Care.
An application was commenced to determine (among other things) whether the mother had capacity to grant the 2017 Power of Attorney documents.
Both sisters filed affidavits, which Justice Penny described as “filled with hearsay (from their mother and others), speculation, suspicion, innuendo and argument” and His Honour “disregarded all such statements” in coming to conclusions on the judgment.
The mother filed no affidavit in the proceedings, but was represented by Section 3 Counsel, who had the view, which was shared by Justice Penny, that “both sisters [were] manipulating [the mother] emotionally to get her to say and do the things they, individually, want her to say and do.”
Further, the evidence suggested that both sisters were heavily involved in obtaining the capacity assessments and the drafting of the reports. It was the first sister alone who decided to obtain the first capacity assessment as a pre-emptive strike in her litigation strategy. The capacity assessor relied solely on this sister for background information. The sister also reviewed a draft of the report and sent proposed revisions, which the capacity assessor agreed to incorporate into her report.
The second sister also chose the capacity assessor for the second assessment and demanded that the capacity assessor provide the questions she intended to ask her mother in advance. This sister was also present during the entire assessment and when the capacity assessor put this in her report, the sister insisted that this be changed to provide that she was not present. This sister also demanded numerous revisions be made to the draft including that it was the mother (and not the sister) who wanted the capacity assessment and she wanted answers provided by her mother “corrected” including information on her net worth – a critical fact in the assessment of capacity to grant a Power of Attorney for Property. The capacity assessor was provided with little, if any, independent information, nor was she provided with any medical records, nor did she make inquiries as to the mother’s medical condition. She was also not made aware of the previous capacity assessment. Justice Penny found the assessment to be “virtually devoid of any analysis”.
Justice Penny referred to the “Guidelines for Conducting Assessments of Capacity” set out in the Regulations under the Substitute Decisions Act, 1992 SO 1992 c 30 (“SDA”) and found online. Part 1 of the Guidelines sets out the Ethical and Legal Considerations when conducting assessment. In the judgment Justice Penny observed:
It is abundantly clear from a review of the Guidelines and the relevant provisions of the SDA itself that capacity assessments were not designed, nor were they ever contemplated, to be used as weapons in high conflict litigation such as this. Yet, this is exactly what both assessments regarding capacity to grant powers of attorney were obtained for in this case.
[. . .]
Both parties sought capacity assessments of Mrs. Adler for the purpose of attacking or defending powers of attorney the obtaining of which they were each involved in as well. Both parties prevailed upon their mother to submit to these assessments for the purpose of obtaining ammunition to use in their fight with one another, not for their mother’s benefit. Both parties were guilty of providing biased or incomplete histories and background to the assessors. Neither assessor undertook any material investigation of other sources of information. Both parties interfered with, and had a hand in drafting, the final assessment reports. This kind of use of capacity assessments by parties or their lawyers is improper and should be discouraged in the strongest possible terms by counsel and the Court. [emphasis added]
Penny J. rejected both capacity assessments as unreliable due to the bias and interference of the sisters, and had to turn to other factors to determine the grantor’s capacity to grant the Powers of Attorney, including clinical notes by her doctor, a Community Care Access Centre status review, a Regional Nursing Services report, and anecdotal evidence from friends and other family members.
Penny J. also noted that the lawyer who drafted the 2017 Powers of Attorney was unknown to the grantor, was not aware of the capacity assessment concluding that the mother did not have the requisite capacity to grant a Power of Attorney for Property, and there was no indication the lawyer explained the consequences of having two people who were in open conflict with one another appointed as her joint attorneys or that the grantor had any appreciation of the consequences of doing so. The Court found that the 2017 Powers of Attorney were invalid due to lack of capacity.
There is a time and place for capacity assessments when the purpose of obtaining one is for the benefit of the potentially incapable person and not as ammunition in Power of Attorney litigation. Further, capacity assessors, like other experts, should not be forced or manipulated into providing a result that the person or party requesting the assessment dictates.
 Adler v Gregor 2019 ONSC 3037 at para 11.
 Adler v Gregor 2019 ONSC 3037 at para 11.
 Adler v Gregor 2019 ONSC 3037 at para 31.
 Adler v Gregor 2019 ONSC 3037 at para 44.
 See Capacity Assessment, O.Reg 460/05 and the Ministry of the Attorney General, “Guidelines For Conducting Assessments of Capacity” online: https://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-06/guide-0505.pdf
 Adler v Gregor 2019 ONSC 3037 at para 47.
 Adler v Gregor 2019 ONSC 3037 at para 52.