Capacity and Incapacity Issues involve both adults and minors. Incapacity proceedings also concern elders.

Careful, considered and creative planning will help to avoid family conflict and, in turn costly and senseless litigation ensuing as a result of not preparing for capacity issues, or for incapacity.

Litigation in this area involves minors, adults, and the elderly. It involves elder 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.

The context of the issues are often contentious and litigious. The context however, also includes planning to protect against abuse during potential future periods of incapacity.

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

People in general are presumed to be capable to make the decisions that they do unless it is shown otherwise. Lawyers are often entrusted with helping people implement some of their decisions, and in so doing, they assess peopleís 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 individualís capacity to marry, an individualís 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.

* Please visit the 'Publications' Section of our website for further information and resources.