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Can people be forced to undergo a capacity assessment?

In this video, lawyers discuss the factors judges consider when children seek court orders to compel a parent to have their capacity assessed. This issue arose in Abrams v Abrams and the lawyers talk about how the court dealt with the issue and what people need to consider when pursuing this type of litigation.

This video depicts actual Lawyers from Wagner Sidlofsky LLP discussing legal principles, statutes and case law in an educational presentation.  The story used as a platform for the discussion and persons portrayed as potential or actual clients are fictitious. Other than our firm’s lawyers, any resemblance to real persons or real client stories is coincidental and is not intended and should not be inferred.


Katherine: hey Brad, do you have a few minutes to discuss a guardianship problem my friend is dealing with?

Brad: sure, actually Rob’s working on a guardianship file as well so let me try and get him on the call. Hi Rob.

Rob: hey Brad.

Brad: Katherine’s actually looking for some advice for a friend of hers on a guardianship matter and I thought it might be helpful for you to participate in the call as well.

Rob: sounds good, thanks.

Brad: okay, go ahead Katherine.

Katherine: my friend Ezra, he’s concerned about his mother. Ezra’s sister has convinced their mom that she should leave their father and move in with her.

Brad: do you know if Ezra’s mom appointed someone to be in charge of her property or care?

Katherine: his mother’s made his sister her attorney for personal care and property, and a doctor assessed her capacity and said she was capable of deciding whether she wanted to stay married and to make his sister her attorney.

Brad: so why does Ezra disagree with the doctor? Why does he think that his mom is incapable?

Katherine: well his mom has a brain tumour and she has problems remembering who he is, or who her children are, and no one’s ever told her she has a tumour. Ezra’s parents have been married for 40 years and never had any problems that Ezra knew about.

Rob: so basically what you’re saying is that Ezra is really concerned that all of this might just be a ploy by his sister to get control of their mother and her money at a time when she’s vulnerable.

Katherine: yes, he wants a judge to order his mom to be assessed again to find out if she is capable of making these decisions.

Brad: okay Katherine, it sounds like there are a couple of key issues here. First, Ezra has to appreciate that his mom has already been assessed for capacity once, and compelling his mother to be assessed again, which can be sought under the Substitute Decisions Act, is a significant issue to the court. It has to balance Ezra’s mother’s fundamental rights against the court’s duty to protect the vulnerable. Ordering a psychiatric examination is a substantial intervention into the privacy and security of the individual. It can be an intrusive and demeaning process so judges don’t order them so easily. And the other thing that Ezra has to consider comes from the seminal case of Abrams, and Rob you’ve been dealing with the Abrams case on that other file, so why don’t you tell Katherine a bit about it.

Rob: absolutely. So in Abrams, the siblings were fighting over control of their mother’s money and whether their father had the ability to manage his wife’s money. It was a very bitter fight and they were in court a total of 24 times. Both parents had obtained previous capacity assessments and three of those previous capacity assessments indicated that their mother lacked capacity, due to dementia. Now the father’s capacity assessments said he was capable of managing his wife’s property. If however the father could not act as his wife’s attorney, the daughter was named as an alternate. Now, the brother on the other hand was seeking to obtain court ordered assessments, which he thought would contradict the previous assessments.

Katherine: so what did the courts decide?

Rob: ultimately, they decided that there was no need for further assessment. They’d previously both been assessed multiple times.

Brad: so one of the important things about Abrams is that it really was not about the parents, it was a war of attrition between these kids. They forgot the mission statement of the Substitute Decisions Act litigation, which is “it’s not about you, it’s about what’s in the best interest of the parent”. And Justice Brown really drove this point home in the Abrams case. He said that proceedings under the SDA are not designed to enable disputing family members to litigate their mutual hostility in a public court. Guardianship litigation has only one focus: the assessment of the capacity and best interests of the person whose condition is an issue. This court should not and will not tolerate family factions trying to twist SDA proceedings into arenas which they can throw darts at each other and squabble over irrelevant side issues. So my advice to Ezra is that he should ask himself during each step of this process whether what he wants to do is in the best interest of his mother. And if it is in her best interest, then he has a chance. But every case is different and turns on its own facts. And these cases are complicated and that’s why they often end up in court. So please tell Ezra to call us and we’d be happy to discuss with him further.

Katherine: no problem, I’ll book him in.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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