Litigation in this area involves minors and adults under disability as well as the older adult. It also involves elder abuse, elder financial abuse, the misuse of power of attorney documents, and abuse of fiduciary power, including fiduciary litigation.
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. At law, there is no single legal definition of capacity. Though it is often elusively said that there are legal ‘tests’ for determining or establishing decisional capacity. The Substitute Decisions Act, 19921 (the “SDA”) simply applies a set of criteria for various decisions, and defines “capable” as meaning “mentally capable”. There is no single approach to determining requisite decisional capacity. Instead, such an assessment incorporates factors to be considered and is dependent on the task and situation at hand. In other words, decisional capacity is time, situation and task specific.2
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 Decision Specific
The law presumes that every person is capable of making decisions, however this presumption may be legally rebutted.3 In order to rebut the presumption of capacity, we look to both law and fact, and apply the available evidence to the criteria for determining requisite decisional capacity in that particular situation. Capacity is specific to the particular decision being made or task undertaken. The relevant criteria employed in assessing whether an individual has the requisite capacity to grant a continuing power of attorney for property, for example, necessarily differs from the criteria for granting a power of attorney for personal care, and from the capacity to manage one’s property or personal care. Similarly, the capacity to enter into a contract, transfer real property, give a gift, marry, separate or divorce will all involve very different considerations, as determined by statute and at common law. As a result, it is not possible and is legally and medically incorrect to conclude that a given decision is higher or lower on a threshold based spectrum. Instead, every situation is unique, and the presence of decisional capacity, or its absence in one area does not necessarily imply the presence of decisional capacity or its absence in other areas. In effect, the possibilities are endless when it comes to combinations of decisional capabilities, since each decision brings with it concordant standards or factors to be considered in its determination.4
Capacity is Time Specific
At law, capacity can and does fluctuate over time. Indeed, courts have consistently adopted the premise that the requisite capacity to grant a power of attorney or make a will can vary over time.5 This specificity in terms of the timing of any given decision renders expert assessments of capacity a complicated undertaking. Accordingly, expert assessments or examinations must adhere to procedures which include clear demarcations of date and time. Given that assessments, whether expert or otherwise, are not always conducted concordantly with a particular decision, the probative value of the evidence may be impacted.6
Capacity is Situation Specific
Generally speaking, the requisite capacity to make a decision is demonstrated by an individual’s ability to comprehend the information relevant to the decision, and to understand the possible implications of this decision. Importantly, this enquiry is undertaken in a meticulous manner, and separated from traditional notions of how a given individual should, or is likely to respond to a particular situation. For example, in Starson v. Swayze,7 the court pointed out that the presence of a mental disorder does not imply that an individual lacks the requisite capacity to make a decision, and that legal capacity can only properly be rebutted through clear evidence.8 An individual must possess the “…cognitive ability to process, retain and understand the relevant information,”9 and should “…be able to apply the relevant information to his/her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.”10 It is important to note that reasonableness of decision making, or other normative standards, are not essential elements of requisite decisional capacity. As indicated in Re Koch, “[i]t is mental capacity and not wisdom that is the subject of the [SDA] and the [Health Care Consent Act]11. The right knowingly to be foolish is not unimportant; the right to voluntarily assume risks is to be respected…”12
Decisional capacity requirements and ascertaining same, embrace incredibly complicated areas of the law, particularly since each task has a particular standard or set of criteria to be applied, and because there is no clear uniformity with regard to approaching requisite decisional capacity. Though courts are typically reluctant to accord one type of decisional capacity prominence over others, this often occurs nonetheless. In Covello,13 Justice Boyko emphasized that various capacity standards are not necessarily higher or lower than one another, but simply different. Similarly, in Barrett Estate v. Dexter,14 the Alberta Court of Queen’s Bench examined requisite capacity to marry in the context of a 93 year old man marrying a 54 year old woman, and agreed with the capacity assessor’s assertion that it is possible for an assessor to set a high or low threshold, but that no matter where the threshold was set, the testator in that case failed.15
Capacity is a complicated concept in that each task has its own standard, and often the issues involved where capacity is in question can be very complex. Because of the complicated nature of decisional capacity, and in the absence of statutory definitions to take the guesswork out of such matters, a professional working in practice areas touching on decisional capacity where capacity is at issue must be constantly mindful of the client’s capacity to complete a particular task, and the importance of knowing as much as possible about who the client is and why the client is seeking to undertake the particular task.
Although, this practice area generally involves abuse against both vulnerable and dependant persons, members of our firm can assist those in need by using their expertise to guide them toward a resolution in this complex area of the law.
1. R.S.O. 1992, c. 30.
2. Kimberly A. Whaley and Ameena Sultan (2013) “Capacity and the Estate Lawyer: Comparing the Various Standards of Decisional Capacity” E.T. & P.J. 215.
3. Palahnuk v. Palahnuk Estate,  OJ No 5304 (SC) [Palahnuk]; Brillinger v. Brillinger-Cain,  OJ No 2451 (SC) [Brillinger]; Knox v. Burton (2004), 6 ETR (3d) 285 (Ont SC) [Knox].
4. Kimberly A. Whaley and Ameena Sultan (2013) “Capacity and the Estate Lawyer: Comparing the Various Standards of Decisional Capacity” E.T. & P.J. 215.
5. Palahnuk, supra note 13; Brillinger, supra note 13; Knox, supra note 13.
6. Kimberly A. Whaley and Ameena Sultan (2013) “Capacity and the Estate Lawyer: Comparing the Various Standards of Decisional Capacity” E.T. & P.J. 215..
7. Starson v. Swayze,  1 SCR 722, 2003 SCC 32 [Starson].
8. Ibid at para 77.
9. Ibid at para 78.
10. Ibid at para 78.
11. The Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A
12. Re Koch, 1997, CanLII 12138 (Ont SC) at para 89.
13. 2007 CarswellOnt 3726 [Covello] at para 21, citing Godelie v. Ontario (Public Trustee) [1990 CarswellOnt 497 (Ont. Dist. Ct.)].
14. Barrett Estate v. Dexter 2000 ABQB 530, 268 AR 101 (QB) [Barrett Estate].
15. Ibid at para 72.
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 Partners.Link to Practice Areas list