Abrams v. Abrams & Capacity Assessments

Children fighting over control of their parents’ money sometimes go to court to try to force their parents to undergo capacity assessments.

Once a parent is declared incapable, the children can, under the right circumstances, be appointed guardians of their parents’ property.  Judges recognize that a person who is genuinely incapable might need a guardian, but judges are also reluctant to order that a person undergo a capacity assessment when that person is unwilling.  After all, a capacity assessment can be seen as an intrusive and demeaning exercise.  A perfect example of this type of fight happened in the case of Ida and Philip Abrams.¹  For our purposes today, I want to focus only on one small aspect of the story; namely, the effort by Ida and Philip’s son Stephen to force them to undergo capacity assessments. Let’s see why the court refused Stephen’s application.

Philip and Ida had three children who fought for control of their parents and their money.

When this court case was first heard, Philip was 90 years old. He had been a very successful businessman and investor, and had accumulated a fair degree of wealth. His wife, Ida, was 85 years old. As often happens with wealthy families, jealousies and mistrust led to accusations and counter-accusations, which then exploded in court such that Philip and Ida refused to see their son Stephen or daughter Elizabeth.  For the purpose of this blog, the nature of the fight and the family business is unimportant.  Let’s instead review the factual background upon which Stephen asked the court to order that his parents undergo capacity assessments.

Stephen and Elizabeth argued that their parents did not have capacity.

To prove the point they needed the court to make an order for Philip and Ida to be assessed. To be more specific, Stephen alleged that his mother Ida lacked the capacity to grant his father Philip a power of attorney for property in January, 2007,² and that his father Philip lacked the capacity to manage Ida’s property under that power of attorney.³  It was agreed amongst the parties that, by the time of trial, Ida did not have capacity to manage her own property.  (As an aside, what often confuses people is the different types of capacity.⁴ An old man may have the capacity to appoint his daughter to be his power of attorney for property even if that old man does not have the capacity to manage his own property or to make a will. There are many different legal tests.).  In these sorts of discussions it’s important to remember that the person who was appointed as a power of attorney has a right to make decisions for the incapable person.  However, the Substitute Decisions Act, 1992 allows a court the discretion to terminate a power of attorney and name a new person as guardian of property with the same rights and duties as a power of attorney.⁵  For that to happen, the allegedly incapable person has to be declared incapable, which will likely only happen once he/she has been assessed.

Stephen presented proof that might lead someone to question Philip’s and Ida’s capacity, but the judge was still not prepared to order an involuntary capacity assessment.

As part of his efforts, Stephen filed affidavit evidence with the court to show Ida’s deteriorating mental capacity as early as 2004.  In 2005, Ida could not recognize that Philip had suffered a stroke, she was confused about simple household activities and there were allegations that she was delusional. As for Philip, the allegation was that Philip had suffered a stroke in September, 2005, had Parkinson’s Disease and had both short-term and medium-term memory loss. Stephen alleged that Philip was continuing to make speculative investments – that he “thrives on speculation and risk” – at a time when he ought to be focusing on more conservative investments. Stephen also claimed that his father had been making improvident distributions of the assets of Philip’s company.

The Abrams v. Abrams case is an important story because it sets out the law and facts judges consider before ordering capacity assessments.

⁶

Most clients and many lawyers do not understand that the law prioritizes the dignity, privacy and legal rights of people like Ida and Philip, and will not lightly order someone to undergo a capacity assessment.⁷  Justice Strathy’s articulation of this principle is worth quoting in full:

“In considering whether to order an assessment […] a court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable. The appointment of an assessor to conduct what is essentially a psychiatric examination is a substantial intervention into the privacy and security of the individual. As Mr. Justice Pattillo said in Flynn v. Flynn (December 18, 2007), Doc. 03-66/07 (Ont. S.C.J.): ‘[a] capacity assessment is an intrusive and demeaning process.’”⁸

Thus, when considering whether to order a capacity assessment, the court is likely to consider:

1. the rights of the person for whom an assessment is sought, as suggested above;
2. whether the person’s capacity is in issue;
3. whether there are reasonable grounds to believe that the person is incapable;
4. the nature and circumstances of the proceedings in which the issue is raised;
5. the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
6. if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
7. whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;
8. whether the assessment will be necessary in order to decide the issue before the court;
9. whether any harm will be done if an assessment does not take place;
10. whether there is any urgency to the assessment; and
11. the wishes of the person sought to be examined, taking into account his or her capacity.⁹