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capacity assessment

The Shrink Next Door – legal options if this took place in Canada

By Adin Wagner and Charles Wagner1

Imagine Martin Markowitz’s sister coming into your office and telling you her brother’s story:

“For nearly 30 years your psychiatrist takes over your life, claims your Southampton estate and your family business, as well as your Swiss bank account as his own. … He convinces you to become estranged from your only sister and persuades you that anyone you date is after you only for your money”2.

This salacious story was the subject matter of a true crime podcast. It so captured the public’s imagination that Apple TV turned the story into a miniseries.3 Perhaps this type of story strikes a chord with people because vulnerability is like a siren call to rogues and ne’er do wells. It intrigues us because we all feel that, but for the grace of God, those people being victimized could be us when we are at our weakest point. There are so many stories of people who abuse their position of power to take advantage of those unable to resist. Given the prevalence of this phenomenon, we thought it would be a useful exercise to examine the legal options open to Martin Markowitz’s family if his psychiatrist took advantage of him like that in Ontario.

So what approach would lawyers take to protect Martin and his assets from the psychiatrist who is exploiting him?  In New York, Martin had an epiphany and found the resolve to complain to the New York State Department of Health. Seven years later, they took away his doctor’s license based on findings of professional misconduct, fraud, negligence, incompetence and undue influence.4 In Ontario, the same approach could be taken with a complaint being lodged by Martin against the psychiatrist with The College of Physicians and Surgeons of Ontario (CPSO).5  But this is a consequence, not a solution. During all those years while Martin was under the adverse influence of his doctor what could his family have done? What could lawyers do to help the family stop the abuse and disgorge the money and assets stolen by the doctor?

Remember, while under the influence of his doctor, Martin Markowitz would likely resist any attempt to help him. He might hire his own lawyer and argue that he is fully capable of making his own decisions about his property and personal care. Moreover, the courts view a family member seeking a declaration of incapacity with the utmost seriousness. The legislation is premised on substitute decision makers acting for and to protect vulnerable people who lack capacity. Nevertheless, the individual rights of the allegedly incapable person are a vital consideration. As one judge explained,

An application for a declaration of incapacity under the SDA is an attack on the citizen’s autonomy and, in the event of a finding of incapacity, which is a judgement in rem, results in the abrogation of one or more of the most fundamental of her rights: the right to sovereignty over her person and the right to dominion over her property.6

In order for a judge to appoint a family member as a guardian of property and personal care, the lawyers for the family would have to seek the court’s advice, opinion and direction on whether Martin was capable.  If the answer was yes, then the judge would not take away management of his property from him, and Martin would still be vulnerable to the rogue.  If the answer was unknown, then the first step is to ask the court to have Martin assessed. If the evidence points to incapacity, then Martin’s sister would move under the Substitute Decisions Act (the “SDA”) to seek a declaration of incapacity, terminate the attorney for property (if any) and ask the court to appoint her as guardian for property and person.

It’s not an impossible order to get, but judges are wary of granting an order to have someone assessed7 and to declare a person incapable. As Justice Low stated in Abrams,

In thoughtful and comprehensive reasons, Strathy J. set out, at para. 53 thereof, the factors which should inform the exercise of the court’s discretion under s. 79 of the SDA: the purpose of the legislation, 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, whether there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached, whether there are flaws in the previous report, whether an assessment is necessary 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 assessed, taking into account his or her capacity.

Let us assume Martin’s sister obtained a court order for a capacity assessment. We would then look to the definition of incapacity and see if a person who is being unduly influenced falls within the definition of being incapable.

Section 6 of the SDA defines incapacity to manage property in this way,

A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision (emphasis added).

Lawyers opposing the declaration of incapacity will argue that there is no allegation that Martin was unable to understand the information that is relevant to making a decision in the management of his property. They would further argue that if Martin wanted to bring his own lawsuit to set aside the gifts, that would be his right, and he could raise the issue of undue influence to set aside the gifts.

The sister’s lawyers could point out that the definition of incapacity under the SDA is flexible enough to deal with a situation where Martin was being unduly influenced. The legislation says someone is also incapable if he “….is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision (emphasis added).”  In this context what does “appreciate” mean?

Arguably, while under the influence of his doctor, Martin was robbed of his ability to appreciate the reasonably foreseeable consequence of giving away all of his property. He could not appreciate that his doctor was essentially usurping the ability to make decisions. In Costantino v. Costantino8, at paragraph 46, Price J. stated,

“In determining whether a person was, at the time he or she executed a Will or Power of Attorney, capable of doing so, the court seeks to determine whether the testator or settlor intended to dispose of his or her property, and to appoint someone as his attorney to do so, and whether his decision-making was compromised by delusions (or undue influence or fraud), which interfered with his true testamentary intentions.

It appears that Price J. included undue influence as a factor that would impact on a person’s ability to appreciate the reasonably foreseeable consequences of a decision.  But, he does not specifically draw a causal connection between undue influence and the lack of capacity.  In fact, we have not found a case that does that specifically.  Arguably, the lawyer who pursues that case must make the argument using basic principles and by analogy.

The SDA and the case law protect the autonomy of the individual. Undue influence usurps that autonomy.  Accordingly, given that the goal of the legislation is to protect the vulnerable, should we not assume the legislation and common law ought to protect the vulnerable from being victimized by an undue influencer? Applying the principles of testamentary capacity to this situation, a testator must know and approve of a will in order for it to be valid. Moreover, a will is invalid when a testator is coerced/ unduly influenced to the extent that the testamentary wishes expressed in the will do not reflect the genuine wishes of a testator. Arguably, the same principles apply in the context of capacity to manage property.  It is logical to suggest that in a SDA context the law would protect a vulnerable person’s decision making process so that the decision made regarding property genuinely was that of the vulnerable person. Arguably, there is no reason to treat decisions made by a person whose capacity is diminished by dementia any different than decisions made by a rogue third party exercising undue influence. In each case the decision maker is not approving those decisions. To that end, it is reasonable to suggest that the courts should look at s. 6 with fresh eyes and read into the word “appreciate” as being free from undue influence. Arguably, while being unduly influenced the vulnerable person cannot appreciate the reasonably foreseeable consequences of a decision or lack of decision because all the vulnerable person is thinking about is the threats made by the rogue that make his/her influence undue.


Often family members find themselves trying to help a relative who resists that help. It may be the fear of a caregiver who threatens to abandon them resulting in the person going to a nursing home or a doctor who coerces them by withholding approval or indicates that they will drop them as a patient.

In the context of a doctor-patient relationship, there is an enhanced level of duty.  Doctors have been recognized as fiduciaries.9 This will impact on the courts’ view of the egregiousness of the breach and the consequential relief that flows from that. What makes the underlying case so infuriating is that the psychiatrist has professional obligations to his patient; not only was the patient deceived and manipulated, but he was victimized by a person who had his trust based on professional expertise.

So the question for family members is how to deal with their vulnerable relatives being victimized to the point that they cannot make their own decisions. If Martin’s case was argued in Ontario, the key issue would be whether he was incapable of managing his property.  If the court judged him to be capable, then the family would have no right to pursue the doctor or take any steps to protect Martin’s property. If the court declared him incapable then under the SDA, the court could appoint his sister as the guardian of person and property, and she would have the status to appear before the court and seek to disgorge the assets and funds defalcated by the physician.

The difficulty for Martin’s sister is that the courts are resistant to ordering that a person be assessed for incapacity and equally, if not more resistant to declaring them incapable. The authors have not found one case directly on point to support the proposition that undue influence, in the context of SDA litigation, robs a person of their capacity. That does not mean that a judge could not or would not make such an order with the right facts – it just means that we have not found such a case.

The problem just doesn’t occur in the strange circumstances of the Markowitz case. Consider an older adult that is dependent on another person for care. Anecdotal evidence tells us that in such situations – particularly where the older person is not just dependent on his or her caregiver but also isolated from others – elder abuse and exploitation is common. The victim, however, may not want to do anything to pressure the abuser to stop – the result could be ending up in a nursing home rather than being able to live at home. People like Mr. Markowitz’s psychiatrist can be skilled at manipulation and coercion. This is where lawyers can be helpful, but success very much depends on the determination of a lawyer to bring the abuser to heel.

  1.   The authors would like to thank Professors Tim Youdan and David Freedman for their assistance in discussing the issues raised in this blog.
  2.   This is the description provided by Debra Nussbaum Cohen in her article in Forward Magazine entitled “His psychiatrist took control of his house, his bank account and his life. Now Will Ferrell is portraying him in a true-crime TV series”, dated July 14, 2021 and found at
  3.   The series is based on a podcast with the same title. For a summary of the podcast see Elizabeth Yuko’s article dated June 11 2019 in Rolling Stone.
  4.  See New York’s Department of Health decision found at
  5.   For how to file a complaint see,use%20to%20initiate%20a%20complaint.
  6.   See the endorsement of Low J. in Abrams v. Abrams, 2009 CanLII 12798 (Ont. Div. Ct.) and paragraph 67 of Penny J.’s Reasons for Judgment in Adler v. Gregor, 2019 ONSC 3037
  7.   See Section 79(1) of the SDA which provides:

    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.

    Also see sections 105(2) and (3) of the CJA which provide:

    (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 questions 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.

  8.   2016 ONSC 7279 (CanLII), <
  9.   See Frame v. Smith 1987 CarswellOnt 347 and McInerney v. MacDonald,1992 CarswellNB 247, 1992 CarswellNB 63, (1992) 2 S.C.R. 138, (1992) S.C.J. No. 57, 126 N.B.R. (2d) 271, 12 C.C.L.T. (2d) 225, 137 N.R. 35, 317 A.P.R. 271, 3 W.D.C.P. (2d) 412, 7 C.P.C. (3d) 269, 93 D.L.R. (4th) 415, J.E. 92-917, EYB 1992-67321.  Also see Westlaw Canada memorandum of Law entitled, What role do fiduciary duties play in the legal governance of physician/patient relationships in Canada? CARS1MEMO-ONM 2885 which concludes as follows:

    “Fiduciary obligations are an important part of our law, insofar as they protect vulnerable parties from exploitation by persons in whom they place their trust. In the health law context, these principles are particularly important to the doctor-patient relationship, as patients are largely in the hands of their care providers and generally have an expectation of fidelity from their physician. There is a strong case for the imposition of fiduciary duties on doctors—not only are doctors trusted and provide a truly specialized service, physicians’ professional ethics seem to require the imposition of fiduciary obligations on a general level. Moreover, the Supreme Court of Canada upheld the imposition of fiduciary duties on doctors in KeyCite cautionary citing references available​ McInerney v. MacDonald, infra, despite later indicating in that this duty does not always apply. Accordingly, on both a theoretical and factual level, it is apparent that doctors should—and generally do—owe a fiduciary obligation to their patients.”

The authors of this blog are Adin Wagner and Charles Wagner Adin is an associate at the firm and Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

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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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