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.
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:
- the rights of the person for whom an assessment is sought, as suggested above;
- whether the person’s capacity is in issue;
- whether there are reasonable grounds to believe that the person is incapable;
- the nature and circumstances of the proceedings in which the issue is raised;
- the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
- if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
- 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;
- whether the assessment will be necessary in order to decide the issue before the court;
- whether any harm will be done if an assessment does not take place;
- whether there is any urgency to the assessment; and
- the wishes of the person sought to be examined, taking into account his or her capacity.9
- I caution the reader that there are many cases involving the Abrams family. The decision that first deals with the capacity assessment was decided by Strathy J. It is cited as Abrams v. Abrams, 2008 CarswellOnt 7788 (S.C.). That decision was appealed to the Ontario Divisional Court and decided by Low J., and is cited as Abrams v. Abrams, 2009 CarswellOnt 1580 (Div. Ct.). Both decisions are worthwhile for the person researching under what circumstances a court might consider ordering a capacity assessment for someone alleged to be incapable. ↵
- I refer the reader to section 8 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, which sets out the test for a person being able to give a continuing power of attorney. ↵
- I refer the reader to section 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, which sets out the test for a person being able to manage his or her property. ↵
- It is beyond the scope of this blog to fully address the different types of capacity, but I refer the reader to a blog entitled “Capacity in the Estate Context,” which may be found on-line at: http://bit.ly/capacityestatecontext ↵
- I refer the reader to sections 22 and 55 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. The court has jurisdiction to order a change of substitute decision maker in the best interests of the person if a valid grant of a power of attorney no longer serves the person’s best interests. The best interest of the individual whose capacity is in issue is the sole focus of Substitute Decisions Act litigation. It is not about being fair to the competing family members. For how courts have dealt with this issue, I refer the reader to John Gironda et al. v. Vito Gironda et al., 2013 ONSC 4133 (CanLII) at paras 170-173, Cates v. Forbes, 2003 CarswellOnt 1999, and Abrams v. Abrams, 2010 ONSC 1254 at para. 35. ↵
- Ordinarily, the statutory ground relied upon for such a request is section 79 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. Interestingly, Stephen Abrams’ lawyer Murray Teitel also sought to rely on section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 105 reads:
105.(1) In this section,
“health practitioner” means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction. R.S.O. 1990, c. C.43, s. 105 (1); 1998, c. 18, Sched. G, s. 48.
(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.
(4) The court may, on motion, order further physical or mental examinations.
Examiner may ask questions
(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence. R.S.O. 1990, c. C.43, s. 105 (2-5).
This section is ordinarily used in the context of personal injury claims where the plaintiff’s medical condition is in issue. It is not usually relied upon in the context of capacity litigation. I refer the reader to paragraphs 53-56 of Low J.’s decision at the Divisional Court, which outlines the history of section 105 and describes her view that section 105 was inapplicable in the circumstances. ↵
- That the dignity, privacy and legal rights of the individual are primary can be gleaned from different sections of the SDA:
(a) is a presumption of capacity (section 2);
(b) a person whose capacity is in issue is entitled to legal representation (section 3);
(c) a person alleged to be incapable is entitled to notice of the proceedings (ss. 27(4) and ss. 62(4));
(d) the court must not appoint a guardian if it is satisfied that the need for decisions to be made can be met by an alternative course of action that is less restrictive of the person’s decision making rights (ss. 22(3) and ss. 55(2));
(e) in considering the choice of guardian for property or personal care, the court is to consider the wishes of the incapable person (cl. 24(5)(b) and cl. 57(3)(b));
(f) subject to exceptions, a person has a right to refuse an assessment, other than an assessment ordered by the court (section 78).
One example of how reluctant a court might be to order that a person be assessed against her wishes is the case of Urbisci v. Urbisci, 2010 CarswellOnt 8369 (S.C.). Maria Urbisci had a malignant brain tumour. One of her daughters sequestered her from her husband, other daughter and grandchild. It was alleged that Maria’s decision to divorce her husband and rewrite her last will and testament was so unusual that it reflected either a diminution in capacity or undue influence. In spite of the other details of the case, the court was not convinced that the facts were sufficiently persuasive to order an assessment against Maria’s wishes. It is beyond the scope of this endnote to review all of the facts, but the court found that while the applicants clearly put Maria capacity in issue, they failed to show that there were reasonable grounds to believe that Maria was incapable. In arriving at his decision, Brown J.’s reviewed the law, including the Abrams case:
25 The Substitute Decisions Act, 1992 contains the basic principle that absent reasonable grounds to believe the contrary, a person is presumed to be capable. The Health Care Consent Act, 1996 contains a similar presumption with respect to treatment, admission to a care facility and personal assistance services. The capacity of a person may vary, depending upon the function in issue and its complexity. Section 79(1) of the SDA enables a court to order a person to undergo a capacity (assessment) if reasonable grounds exist to believe the person is incapable:
79. (1) If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or on its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person’s capacity.
26 On an application under section 79(1) the applicant bears the onus in satisfying the two conditions outlined in the section. Those conditions are cumulative and both must be satisfied before the court may order a capacity assessment.
Brown J. then proceeded to quote paras. 50 and 53 of Strathy J.’s decision in Abrams v. Abrams, 2008 CarswellOnt 7788 (S.C.). ↵
- See para. 50 of Strathy J.’s decision in Abrams v. Abrams, 2008 CarswellOnt 7788 (S.C.). ↵
- Ibid., para. 53. ↵