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Capacity Proceedings

Litigation in this area involves minors and adults under disability as well as the older adult. It involves elder abuse, elder financial abuse, the misuse of power of attorney documents, and abuse of fiduciary power, including fiduciary litigation. This practice area generally involves abuse against vulnerable and dependant persons.

Capacity proceedings often involve many different types of statutes, the Rules of Civil Procedure, and many venues, not just the Ontario Superior Court of Justice, but the Consent and Capacity Board.

People in general are presumed to be capable to make decisions unless declared otherwise incapable of making certain decisions. Lawyers are often entrusted with helping people implement some of their decisions, and in so doing, they assess a person's capacity, sometimes without their even realizing they are making such an assessment. Courts, in turn, may be asked to decide whether an individual had the required capacity at the time that the person made certain decisions. It follows that a court would be most interested in the assessment a lawyer made of the individual's capacity. A lawyer must therefore be aware of the different standards of capacity and the factors to be considered when assessing capacity.

Capacity is not static. Capacity is unfortunately, or fortunately, as the case may be, a moving target. There is case law to address an individual's capacity to marry, an individual's capacity to make and revoke Powers of Attorney for Personal Care and for Property, in respect of testamentary capacity. There is case law addressing medical opinions on testamentary capacity and other required requirements concerning capacity in general.

Proceedings in this area are quite specialized.


WEL Paper: Overview of Decisional Capacity: Indicators, Red Flags and Assessments

WEL Paper: Capacity issues in Real Property Transactions

WEL Paper in Estates and Trusts Pensions Journal: Capacity and the Estate Lawyer: Comparing Various Standards of Decisional Capacity

WEL Capacity Checklist

WEL Summary of Capacity Criteria

This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation.

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