Power of Attorney - Part 3 - Hull on Estates and Succession Planning #184
Listen to: Power of Attorney - Part 3 - Hull on Estates and Succession Planning #184
This week on Hull on Estates and Succession Planning, Ian Hull focuses on the importance of capacity assessments.
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Ian Hull: Hi and welcome to
Hi, I’m Ian Hull and I’m going to do this podcast alone today. Suzana is not well with a bad cold and we thought we would try to keep up to date with our podcasting, didn’t want to miss a beat if we can.
So I want to talk about a couple of things and where we have been working from in our Power of Attorney series, and that is, staying focused on the question of capacity. It is the fundamental issue. It is the one that Justice Quinn, back in 1994 in the Re Koch decision, reminded us of the importance of it and the need for stringent and careful assessment as to one’s capacity, because again it is the ultimate in taking away of one’s liberty. And that is, if you make a finding of incapacity and you appoint a guardian or you allow a Power of Attorney to prevail, in that context, you have taken away that individual’s liberty.
So I thought we’d step back and look at this question of capacity a little bit historically and where it has come in handy is that really what we are always proud of is our web page at hullandhull.com. And on that web page we have continuing series where we go and we have our Breakfast Series, which we run through webinars and so forth. Our next one is coming up in January. But I went back to the web page and noticed one of our last broadcasts, the archived Breakfast Series under the News & Events Section…and by the way, we’re in the process of even revamping our web page further, so later in the fall we’re going to have a new look and hopefully a little easier way of navigating in it…but I was struck by the fact that we have, in the past, dealt with this issue of capacity in what I think modestly is a really effective way of trying to sort of explore the various parameters of capacity. And in my last Breakfast podcast, I actually spoke on a series of cases. There’s a paper on the web and there’s also a video content of my presentation. I’m not going to be repeating that extensively but I encourage you to go look at that. That was the June 9, 2009 Breakfast Series. But I do want to talk a little bit about some of those cases that we talked about that day, because again, it helps us sort of step back and deal with the whole question of capacity.
Now before we go to that, I’ve sort of set you up and we’ve got a good resource, I hope, that will start you too. We have lots of other information on our web page and our blog in terms of capacity issues. But I thought I would like to go back to my source that I’m really enjoying working through. And again, thanks to Mary Stokes at Legge & Legge, for telling me about this book. It’s called “Dead Hands”. It’s by Lawrence Friedman and it’s a social history of Wills and trusts and inheritance law. So stepping back and looking at the question of lack of capacity, I go to the author’s wonderful quotes here. And he describes lack of capacity as follows: “Lack of capacity means either that you are too young to make out a Will or are, to put it bluntly, too arranged or demented to do so”. Now he’s dealing with, of course, capacity to do a Will which we’ve talked about before has a higher level of capacity, many of the authors say, than to do a Power of Attorney. But the question of capacity is a very similar theme and some of the same components can be imparted from the test for Will challenges as with the test for Power of Attorney.
He goes on to say “too young is almost never a grounds for a contest, but the statutes typically say that you have to be an adult to execute a Will.” In
So one of the themes that I worked up during my presentation the last time around was looking at the global scope of capacity and how it’s being addressed in some of the recent case law. And I talk about the definition of insane delusion. Now there’s a stark demonstration and illustration of capacity sort of gone awry at its widest scope. And in the definition of insane delusion is a belief of things as realities which exist only in the imagination of the patient. So persistent belief in facts which have no real existence.
And I think that allows us to step back when we’re testing capacity, for a Will or a Power of Attorney, to truly look at our situation, look at the individual, come back to the same kind of questions. The old adage of ask the same question three minutes later, five minutes later, to make sure that long-term and short-term memory are being tested. But in this scenario, look to what might seem as bizarre facts and start to delineate whether or not those bizarre facts are just eccentric comments or do they fall into the category of insane delusions. Because if they’re insane delusions, the case law is clear for a Will, and obviously with Power of Attorney for Property and so forth, tremendously relevant if we have an individual who is suffering from insane delusions. And we’ve talked about different delineations. And where I thought we’d try to wrap up my comments today was we talked about earlier the question of undue influence being something between proper influence or influence and coercion and undue influence, and that delineation. Well the same thing goes with insane delusions. We need to make sure that we’ve tested, and I always want to make sure if I’m getting bizarre responses or bizarre behaviour from my client, I make sure that this isn’t eccentric; rather it is maybe demonstrating insane delusions. Or as the definition says, persistent belief in facts which have no real existence.
Now I talk about the cases in detail in my presentation in the Breakfast Series. The Hicks decision and the Brydon decision. And in the Brydon decision, it really is…the British Columbia Supreme Court talking about psychotic delusions when testing testamentary capacity. And in that case, the Court reminded us, look at all of the surrounding circumstances. Make sure you’ve tested the individual involved, what their surrounding circumstances are. And in the Brydon case, what was relevant was this individual who was under disability, had some mental frailty already. The Court wanted to make sure that the delineation between insane, psychotic delusions was indeed the case and that we weren’t dealing with what was an eccentric individual who had maybe what might be described as unique understandings of how his or her…in this case, how her estate should be cared for and distributed.
Alright, so this has been a bit of a solo attempt here. We much miss Suzana, our partner on the other side, to at least have some engaging discussions. But I think at least we’ve touched on what comes back to the paramount concern whenever we’re dealing with capacity scenarios, that we get it right and that we’re always thinking of the benefit of the individual incapable person so that it is in their best interest to maintain that goal. So that we are determining whether this person is indeed capable or not capable, with keeping our eye on the ball of what the Act in Ontario and all of the other Acts say, and that is, when you’re dealing with an incapable - primary job one is to make sure you’re protecting the incapable and you’re adding benefit to the incapable’s life in your efforts to come to Court.
So those are my thoughts today. I welcome you next week. We’ll have Suzana hopefully back and I welcome any of your comments. Please feel free to go onto the web page at hullandhull.com and thank you very much for joining us this week.
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