Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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A ‘controlled substance’ is any type of drug whose manufacture, possession or use is tightly regulated by a government because of the higher-than-average potential for abuse or addiction. In Canada, controlled substances fall under the parameters of the Controlled Drugs and Substances Act (S.C. 1996, c.19).  How is it, then, that hundreds of thousands of doses of OxyContin, morphine and other prescription narcotics are ‘robbed, pilfered or otherwise lost’ from the supply chain each year in this country?

On January 23, the National Post’s Tom Blackwell published some startling statistics about the not-so-slow leak of prescription narcotics from the supply chain. According to the Post’s research (based on Health Canada statistics), only 64% of the loss and theft of oxycodone (the active ingredient in OxyContin) is attributable to theft from, or robbery of pharmacies. Suppliers higher up the chain (e.g. manufacturers and importers) are also losing significant volumes of product, accounting for the other 36% of total loss. What scale of loss are we talking about here? If we just look at oxycodone, the combined black-market value of losses from pharmacies and ‘licensed dealers’ (producers, distributors, wholesalers) in 2010 was just over $18 million. That’s roughly a half million tablets.  Professor Benedikt Fischer, an addictions expert at Simon Fraser University summed it thusly: “This isn’t some trivial problem. We’re now looking at a problem that is a major source of disease and death. These drugs are killing a lot of people.”

The volume of drugs taken from wholesalers and distributors has also increased substantially in the past five years.  It is difficult to put a finger on any single cause.  Blackwell's article presented some prime suspects for consideration, including cutbacks in the number of controlled substance inspectors and the bare fact that a trend of increasing prescription rates for opioids translates into more opioids being in the proverbial pipeline.

It is critical that Health Canada gets to the root of the supply chain leaks.  Fischer's "these drugs are killing a lot of people" was no overstatement.  Indeed, as discussed in an earlier blog, accidental deaths in Ontario due to opioid use exceed deaths from HIV.  And from the Globe and Mail (January 6, 2012): the same number of people die from opioid-related deaths in Ontario each year as they do from motor vehicle accidents.  

Jennifer Hartman, guest blogger

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I had the opportunity to listen to an interesting speech at the Estates Summit recently on the topic of predatory marriages.  A marriage is predatory when one party enters it to take advantage of the other party's diminished capacity for the purpose of gaining access to their assets.  These so-called marriages are hard to challenge, because the test for the capacity to marry is low. 

The children of the exploited party may be surprised to find that their parent's marriage later in life changes their right to the inheritance.  The exploited party may be unduly influenced into leaving everything to their new spouse.   Even if the Will remains unchanged after the couple exchange their vows, a spouse still has the right to elect to take an equalization payment from the Estate under section 6(1) of the Family Law Act.  If the exploited party dies without a will, their spouse is entitled to the property absolutely if the Estate is worth less than $200,000 under section 45(1) of the Succession Law Reform Act.  If the Estate is worth more than $200,000, the spouse still gets a preferential share to the first $200,000.  

What can be done to protect elderly people from being exploited?  On the one hand, raising the legal capacity to marry could prevent some predatory marriages.  On the other hand, raising the capacity to marry could take away the right of people with certain disabilities to get married, when the fact that someone has a mental disorder does not necessarily mean that they are being exploited in a relationship. 

Somehow, a balance must be struck.  If you have any thoughts on this topic, please feel free to share them as a comment.

Holly LeValliant - Click here for more information on Holly LeValliant. 

* The title of this blog is attributed to lyrics by Kanye West

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It is clear that a solicitor’s duty to substantiate capacity is particularly important where indications of undue influence and/or suspicious circumstances exist, which can apply to power of attorney situations as well as to the preparation of Wills. Unfortunately, many solicitors are not trained to undertake such a task, which is most difficult when incapacity and/or undue influence is not obvious. Where the discussion leaves us questioning capacity, we should consider asking the client to submit to a capacity assessment. 

While assessing capacity involves a complex analysis, the key question for the assessor seems to be: if there is an impairment, can it be overcome? In order to assist the assessor in completing his/her analysis, information sharing is important and can be the key to obtaining a more precise report. Dr. Michel Silberfeld states that it is particularly helpful for assessors to understand as much as possible about their legal direction and objective insofar as the assessment is concerned.[1] He suggests that the following information be provided: (a) the triggering event for the need for the assessment; (b) what the indications of incapacity were, if any; (c) a discussion of the type of assessment required; and (d) which legal capacity should be assessed that will meet the legal objective.

Dr. Silberfeld notes that when assessing capacity to manage property or to give a power of attorney for property, it is generally important to have independent corroborative information about income and expenses, and knowledge of any failures in the management of property.

He also stresses the immense aid the medical information can provide, i.e. recent medical records, list of medications and list of diagnoses from the attending physician.  Providing the assessor withthe appropriate legal, medical, and relevant historical information, as well as the contact information for family members and/or friends that can provide corroborative information, will assist in obtaining a more accurate and timely report. 

Have a great weekend,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

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Capacity, trusts and estates litigation brings us at times before the Consent and Capacity Board, where various issues are addressed, including the medical treatment of minors and capacity issues of adults. The applicable legislation includes the Ontario Helath Care Consent Act, S.O. 1996, c-2. 

An article in the August 2001 issue of Briefly Speaking, comments on the distinction between a minor’s rights under the Act versus their limited say in family law litigation. In the course of such discussion, the authors note the case of A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 SCR 181, and refer to Justice Abella’s comments (writing for the majority of the Court) that when dealing with children under 16, the more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight will be given to his or her views when the court is exercising its discretion under the Act. The court should evaluate the following factors:

·                    The nature, purpose and utility of the recommended treatment, and its risks and benefits;

·                    The minor’s intellectual capacity and degree of sophistication to understand the information to make the decision and to appreciate the potential consequences;

·                    The potential impact of the minor’s lifestyle, family relationships and social affiliations on his or her ability to exercise independent judgment;

·                    Whether there is any emotional or psychiatric vulnerabilities, and the impact of the illness on his or her decision-making ability; and

·                    Any other relevant information from adults who know the minor.

Accordingly, minors have a voice in the decision-making about their treatment in appropriate circumstances.

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

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In Thorpe v. Fellowes Solicitors LLP, [2011] EWHC 61 (Q.B.), a firm of solicitors in London, England successfully defended a negligence action alleging that they acted on the sale of a property without proper instructions from their client, Mrs. Hill, an elderly lady, when she was suffering from dementia.  

The Judgment considers the issue of capacity in detail and, among other things, the Court notes the following:

· a solicitor is generally only required to make enquiries as to a person’s capacity to contract if there are circumstances such as to raise doubt as to this in the mind of a reasonably competent practitioner;

· there is a presumption of capacity, and only if this is called into question should a solicitor seek a doctor’s report (with client’s consent); and

· the Court was satisfied that the lawyer acting on the transaction performed her duties responsibly and took careful notes.

In addition, the Court accepted the evidence of one of the experts whose opinion was that Mrs. Hill was capable to participate in the property transfer even though she suffered from progressive dementia.  Some highlights of the expert’s view are as follows:

· cognitive function can be quite impaired and yet a patient can still have free will and sense of what they want and what they do not want; and

· when assessing capacity medically one would question the patient about how she understands the effect of her decision on other people, and if the patient does understand this, even if there is profound cognitive compromise, then capacity is retained; and

· while dementia may impact on the understanding of particular matters, “even patients with quite severe dementia could still have formed and reasonable opinion" (sic).   

Thanks for reading,

Natalia Angelini - Click here for more information on Natalia Angelini. 

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M. Jasmine Sweatman and Bethany J. Anderson wrote an interesting paper focusing on capacity assessments, presented at Beyond Will and Estate Planning Essentials held on May 10, 2011 by the Ontario Bar Association.

They addressed the two broad categories of capacity assessment: those undertaken pursuant to statutory authority, and those commissioned privately.  The Substitute Decisions Act (“SDA”), the Mental Health Act (“MHA”) and the Health Care Consent Act (“HCCA”) provide for statutory capacity assessments.  As the authors note, very significant consequences can arise under these kinds of assessments.  For example, if found incapable to manage property by an assessor under the SDA or if a certificate is issued by a physician under the MHA with respect to an in-patient of a psychiatric facility, the result is the nearly automatic appointment of the Public Guardian and Trustee (“PGT”) as the person’s statutory guardian of property.  

That said, the PGT can be replaced as the statutory guardian of property upon a successful application by: (a) the incapable person’s spouse or partner; (b) a relative of the incapable person; (c) the incapable person’s attorney under a continuing power of attorney, with certain restrictions; or (d) a trust company.

In contrast, privately commissioned assessments that conclude the person is incapable of managing their property may not automatically deprive the person of decision making ability.  The assessor retained is chosen, and the lawyer and client have the discretion to determine who performs the assessment as well as the scope of the assessment.  The authors point out that the assessment in these cases can serve to protect both the client and the lawyer, and can establish the client’s capacity at a particular point in time.

In our practice we see on occasion that testators are assessed just prior to making a new Will, which can be a particularly good idea if a challenge to the validity of the Will is anticipated after death.

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

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On Thursday February 17, 2011, in the idyllic-sounding community of Sunny Isles Beach, Florida, former Chicago Bears safety Dave Duerson shot himself in the chest. He left behind a suicide note that read: “Please, see that my brain is given to the NFL’s brain bank.”

Duerson was 50 years old at the time of his death.

According to Ann McKee, the co-director of the Boston University School of Medicine Center for the Study of Traumatic Encephalopathy, the results of tests on Duerson’s brain revealed “classic pathology of CTE and no evidence of any other disease. He had severe involvement of areas that control judgment, inhibition, impulse control, mood and memory.” In spite of these cognitive deficiencies, it is not a grand leap to infer that Duerson had a great depth of insight into his condition or the arc his disease would follow in the future.

CTE (chronic traumatic encephalopathy) is a form of progressive, degenerative damage to the brain caused by repetitive closed head injuries (i.e. ‘blows to the head’). It is characterized by the buildup in the brain of an abnormal protein called tau which tends to form in clumps and disrupt brain function. CTE first came to public light after it was identified in the brain tissue of former Philadelphia Eagles player Andre Waters after his suicide in 2006.  The CSTE Brain Bank was established in 2008 for the sole purpose of collecting and studying post-mortem brains, because there is no medical test that can detect CTE in a living person.  The Brain Bank ultimately hopes to answer some of the critical questions about CTE.  How many concussions does it take to cause CTE? Is CTE time-dependent? -  is it the number of years of repeated blows that will determine who gets CTE and who doesn't?  In 2009, McKee published a study indicating that of the 51 confirmed cases of CTE at the time, 90% of the cases occurred in athletes.  If you have 10 minutes to spare today, watch this TIME video called "This is Your Brain on Football" in which McKee is featured.

Last Friday, 28 year old New York Rangers enforcer Derek Boogaard was found dead in his Minneapolis apartment. While details regarding the specific circumstances surrounding his death have been few, it spoke volumes that within 24 hours, Boogaard’s family had stepped forward to donate his brain to the Boston University School of Medicine.  

Jennifer Hartman, guest blogger

* image courtesy of Microsoft

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Worse than watching Sidney Crosby’s head hit  on New Year's Day, was watching Crosby’s attempt to right himself after the blow and skate off the ice. Dr. Wennberg, a University of Toronto concussion expert and NHLPA consultant, summed it thusly: “To see it was painfully obvious. The telling sign was when he tried to get up. Mr. Crosby’s right foot slipped behind him as he got back on his feet, and his mouth guard slipped out of his mouth – subtle signs that that the hit from Washington Capitals winger David Steckel jarred Mr. Crosby’s brain.” Diagnosis: Concussion.

The word concussion is derived from the latin concutere (“to shake violently”). By definition, a concussion is a traumatic closed-head brain injury caused by a blow to the head and resulting in a temporary loss of normal brain function. The old school of thought was that concussions were considered ‘minor head injuries’ because the effects were seemingly temporary, and indeed, most individuals who suffer from a mild concussion will have no long-term effects. There is increasing evidence, however, that some people who sustain a concussion, and an even larger proportion of those who sustain multiple concussions, will endure long-term consequences. In 2009, the NFL finally conceded that “It’s quite obvious from the medical research that’s been done that concussions can lead to long-term problems.” In fact, a study commissioned by the NFL found that former NFL players were being diagnosed with Alzheimer’s Disease at a rate 19 times greater than the background rate for their non-NFL peers (see last year’s blog by Rick Bickhram on dementia and the NFL).   Long-term neurological effects, which can be permanent, may include memory loss, poor concentration, impaired reasoning, seizures, and depression.  Still not convinced?  The February 2011 issue of National Geographic  includes a graphic photograph of brain deterioration due to repeated hits to the head.

For additional information on concussions, and to access resources on concussion prevention, please visit www.thinkfirst.ca , a national injury prevention charity founded by brain surgeon Dr. Charles H. Tator.

Jennifer Hartman, guest blogger

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In the grey zone between benign forgetfulness associated with normal, healthy aging and the memory loss associated with Alzheimer’s Disease (AD), lies an intermediary condition known as mild cognitive impairment, or MCI. A person with MCI will experience greater memory problems than would be expected for his or her age and education, but would not suffer from the pronounced personality changes or cognitive problems (e.g. in the domains of learning, reasoning, decision-making) that characterize Alzheimer’s Disease, and would have ‘no significant daily functional disability’. According to Baycrest, individuals diagnosed with MCI have a 50% risk of developing AD within 5 years.

Since the introduction of the term MCI, two key questions have arisen:
i) How should MCI be diagnosed?
ii) Can we predict which individuals with MCI will go on to develop AD?

Clinical Diagnosis
The mechanisms by which MCI is diagnosed vary widely. Some physicians use the same diagnostic tests as those for diagnosing dementia; i.e. history-taking, physical examination, brief cognitive testing and possibly lab tests to rule out other reversible causes of memory loss. These tests are sometimes supplemented with imaging tools such as PET scans, CT scans and the MRI. In terms of cognitive screening tools, the Mini-Mental Status Examination has been shown to have low sensitivity to detect MCI while in contrast, the Montreal Cognitive Assessment has high sensitivity to detect MCI.

Risk of Progression
Research has demonstrated that there are measurable changes in people suffering from Alzheimer’s Disease many years before symptoms appear. Recent strides have been made in testing for these early changes, which include loss of brain volume and a reduction of a protein called amyloid in the cerebrospinal fluid.

It is estimated that 8% of Canadians over the age of 65 have dementia.

Jennifer Hartman, guest blogger

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Cognitive impairment is not always readily apparent.  When a patient sees a doctor for an ailment of a non-cognitive nature, there is no certainty that the doctor will spend sufficient time with the patient to detect the need for a capacity assessment.  Indeed, the evidentiary value of medical records in estate or capacity litigation may be considerably limited when the focus of the treating physician is not the brain.  Moreover, if a visit is for a limited period of time, there simply may not be sufficient time for any meaningful assessment of capacity even if there were an issue.

A new screening test that takes just two minutes could detect as many as eight in ten cases of cognitive impairment, according to an article in the Archives of Internal Medicine. Current screening tests take a minimum of 10 to 15 minutes, and require the patient to write with pen and paper. Not only is this a problem for people who are hospitalized but it is greatly dependent upon the patient's degree of literacy in the English language.

The “Sweet Sixteen,” (as it is known) is a product of Harvard Medical School that involves 16 elements including questions on basic orientation, items to remember, and counting sequences forwards and backwards.  Although similar to the MMSE, or Mini-Mental State Examination, it takes less time and is apparently just as effective at finding mild cognitive problems.

Interestingly, payment for annual cognitive screening of all Medicare patients is a provision of The Patient Protection and Affordable Care Act which President Obama signed into law last year.
 

David Morgan Smith - Click here for more information on David Smith.

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I recently read a book which made me consider the effects of Alzheimer’s and Dementia in a whole new light. ‘Still Alice’ compelled me to approach cases where these diseases are prevalent with a different. Although this book is a work of fiction, the author was able to convey what feels like a very real account of living with such a disease, and in particular how to cue oneself with environmental triggers to the proper behaviour in any given situation.  

Now that I have become more attuned to this issue, the recent series run by the Globe and Mail including articles relating to many aspects of dementia caught my eye. One of the articles in the series addresses issues of boredom in circumstances where an individual suffers from dementia. Some nursing homes in Ontario have apparently adopted methods previously used by Montessori schools to accommodate the diverse needs of the residents.  Such methods include engaging individuals at their own level of ability in the hopes that behavioural challenges disappear. The belief is that individuals with dementia suffer symptoms such as wandering, and repetitive questioning as a result of boredom, and these behaviours can be altered if the Montessori method is followed.  

The series in the Globe and Mail also addresses the recent concern of banks relating to this issue.  The article notes that the Toronto-based Ombudsman for Banking Services and Investments (OBSI), the agency responsible for resolving consumers’ disputes with most Canadian banks and investment firms, plans to create a national case registry that will flag complaints in which dementia may be a factor. This should alleviate some of the stress on those in the banking field in respect of their responsibility to confirm capacity.  If a system is in place for financial institutions to regard capacity, it may assist the estate litigation field, as we assess which cases have potential success on the capacity front.

Despite the outcome of whether new methods are put in place to regulate banking institutions or nursing homes, dealing with families who have a loved one suffering from dementia isn’t always a cut and dry capacity issue, there are many issues at play. 

Until Tomorrow,

Nadia Harasymowycz- Click here for more information on Nadia Harasymowycz.

Of interest: Many of us have nicknames we received as children; whether from your parents, your older brother who couldn’t same your name right, or a school yard bully who picked on you. For those of you who have grown into adulthood with a nickname you can’t shake, I’m sure you can relate to Charlie the Smoking Chimp. Charlie took up smoking after zoo patrons began offering him cigarettes through the fences at the South African zoo where he resided. Charlie died this week at the age of 52.  His death appears to be caused by old age. Charlie’s cigarette habit was curbed only a few years ago when a video of him smoking began circulating on the internet.  Despite his hard work kicking the habit, he couldn’t seem to drop the nickname.  Only 7% of wild chimps live past the age of 40. Apparently Charlie was doing something right. 

Note: In yesterday’s blog I discussed the issue of retirement home standards. Pleas for an emergency government investigation have been rejected. For the Toronto Star further report on this issue, see here.

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The basic principle governing health care treatment of patients is that treatments should not be administered in the absence of the patient's consent, or where the patient is incapable the patient's substitute decision-maker: section 10 of Ontario's Health Care Consent Act ("HCCA").  The onus is on the health practitioner to decide whether the patient is capable and can give consent.  The range of persons within the HCCA's s. 2(1) definition of "health practitioner" is broad. 

A person who wishes to dispute the finding of incapacity by the health practitioner may apply under section 32(1) of the HCCA to the Consent and Capacity Board (the "Board") for a review of the health practitioner's finding that a person is incapable with respect to the treatment.  The Board may confirm the health practitioner's finding or may determine that person is capable.  Section 80 of the HCCA allows a party to appeal Board decisions to the Superior Court.  The court may exercise all the Board's powers, substitute its opinion for that of the health practitioner's, or refer the matter back to the Board with directions for rehearing in whole or in part.     

The standard of review for the Board's decision is correctness with respect to its interpretation of the law, and reasonableness with respect to its application of the law to the facts, since the issue of incapacity is a mixed question of fact and law: Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 S.C.R. 722.  Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts.  This means that the Board’s conclusion will be upheld provided it is among the range of conclusions that could reasonably have been reached on the law and evidence. 

Courts tend to carefully review appeals from Board findings of incapacity.  In Starson v. Swayze, the Supreme Court upheld the trial judge's overturning the Board's finding of incapacity.  The trial judge examined the extent to which the conclusions drawn by the Board were supported by the evidence from the examination, and concluded they were not reasonably so.  In Re Koch, the Board's finding of incapacity was overturned.  Again, the court found that the conclusions of the Board were not supported by the evidence from the examination.  Also, the examination itself was insufficiently probing to support the conclusions drawn.  In Hillier v. Milojevic, 2010 ONSC 4514 (CanLII), the court allowed an appeal of the Board's finding of incapacity where the hearing had not been conducted in an procedurally appropriate manner.  The allegedly incapable person had not been given sufficient time to answer questions, had been questioned rapidly in a manner that disrupted his train of thought, and had to attend the hearing without his glasses and a computer on which he relied for organization.  The court returned the matter to the Board with directions to conduct another hearing with the assistance of an amicus curaie.

Have a great day,

Christopher M.B. Graham - Click here for more information on Chris Graham.

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 In my blog on August 26, 2010, I introduced the topic of predatory marriages and alluded that these marriages are, perhaps, too easily accomplished. I suggest that this may be the case because the test for capacity to marry, as stated in Banton v. Banton, is a very low one. In the Banton decision, the Honourable Justice Cullity held that the contract of marriage is a very simple one. Justice Cullity reached his decision by reviewing prior case law on the topic and, in particular, historical English jurisprudence dating back to the 1800’s which held that marriage does not require a high degree of intelligence to comprehend. 

Given that it does not require a high degree of intelligence to understand the contract of marriage, it is not too surprising that the test for the capacity to marry is much less stringent than the test for the capacity to make a Will or manage property.

The test for the capacity to marry, in my view, leaves the door wide open for greedy opportunists to marry vulnerable individuals for the sole purpose of gaining access to their property. We do see marriages between individuals with significant age differences and, at times, the elderly spouse is clearly being taken advantage of by a younger opportunist. Further, there are times when the elderly spouse becomes isolated from friends and family and dependant on the very person who is exploiting him or her.

Tragically, the exploited spouse may be left without the financial ability to support herself as she ages. Alternatively, the children and grandchildren of the exploited spouse may feel the brunt of the impact of the marriage where, for instance, the operation of the Succession Law Reform Act means that Will of the marrying spouse is revoked upon the marriage.

I would argue that the test for the capacity to marry, which dates back to jurisprudence from the 1800’s, is archaic in that it fails to acknowledge the very complex property rights that currently attach to marriage. In my view, and in light of the significant property rights at play, marriage should not be characterized as a simple contract. The test for the capacity to marry should, in my view, be broad enough to require that individuals understand the property rights that flow from marriage and the legal consequences related to marriage, including those that affect property.

How do we address this problem? There is, of course, potential for legislative reform. However, one would want to be careful that marriage does not become too heavily regulated.

What do you think?

Have a great day!

Kathryn Pilkington - Click here for more information on Kathryn Pilikington.

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Last Friday, the Ontario Ministry of Health announced plans to introduce legislation later this month that will allow the province to expand its drug database to track prescription drugs. The narcotics database will identify prescription ‘hot spots’ and alert officials when a patient attempts to fill prescriptions from multiple doctors at multiple pharmacies. Prescriptions under both public and private drug plans will be monitored. [Currently, the tracking system only tracks drugs prescribed under a provincial program that funds meds for seniors, welfare recipients and the disabled.] Provincial Health Minister Deb Matthews indicates that the plan will also work with regulatory groups like the College of Physicians and Surgeons of Ontario to create ‘better pain management strategies for its members’. The proposed narcotics strategy has received resounding support from both the Centre for Addiction and Mental Health (CAMH) and the Ontario Pharmacists’ Association.

Earlier this year, I blogged about the issue of ‘doctor shopping’, defined as the practice of visiting numerous doctors, dentists, or pharmacies to fraudulently obtain prescriptions for non-medicinal use. Of particular concern are narcotics and other controlled substances, including painkilling opioids (including morphine, codeine-containing Tylenol 2s, 3s and 4s, Percocet, Oxycontin, and Fentanyl), stimulants (amphetamines such as Ritalin) and sedatives (such as Valium, Xanax, and Ativan).  Some stark statistics:
• In the past decade, prescriptions for oxycodone-containing drugs jumped 900% in Ontario. Last year, under the OHIP drug plan, the province spent over $150 million for narcotics, half of which was for Oxycontin.
• 18% of students (Grades 7 – 12) report using prescription opioids non-medicinally in the past year. The overwhelming source for the students’ opioids was not schools, or the street, but their own homes.
• Ontarians, per capita, use three times more prescribed narcotics than patients in other provinces.
• Last year, the Canadian Medical Association Journal reported that in Ontario, accidental deaths due to opioid use exceeded deaths from HIV.

As an aside, I am curious: In estate proceedings where testamentary capacity is in dispute, will the contents of the narcotics database be accessible pursuant to court-ordered production of “all relevant medical records”?
 

Jennifer Hartman, Guest Blogger
 

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Who says estates law isn’t glamorous?   A French judge in Nanterre, on the outskirts of Paris, has recently rejected the second attempt by Francoise Bettencourt-Meyers to obtain guardianship over her mother, Liliane Bettencourt.  87-year-old Bettencourt is the sole heir of L'Oreal, the world's largest cosmetics and beauty company that her father founded in 1909. She is the richest woman in the world, with her current fortune estimated at 17 billion euros.

Bettencourt-Meyers failed to produce a medical certificate and “in the absence of this document, nothing more can be done”, the Paris official said.  

According to Aol News, Bettencourt-Meyers wishes to protect her mother from a celebrity photographer who befriended Bettencourt and to whom the heiress has given gifts totaling a billion dollars.  France24 reports that Bettencourt accuses her daughter of "vile doggedness" and impatience to get her hands on her fortune.      

Whether a guardianship application is motivated by the desire for power and money or genuine love and concern, a court will not interfere with an individual’s autonomy lightly. For information on when a court will order a capacity assessment, see my previous blog on this topic here.

Sharon Davis - Click here for more information on Sharon Davis.

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'Doctor shopping' is the practice of visiting numerous doctors, dentists, pharmacies and/or emergency rooms to fraudulently obtain prescriptions for non-medicinal use. Increasingly making headlines, doctor shopping is considered to be the most common means by which people addicted to prescription drugs get their hands on their drugs. It is often assumed that someone doctor shops for the purpose of feeding their own personal addiction, however, there is a subset of doctor shopping activity for the intent of street sale. Depending on the drug, street value can range from $0.25 to $75.00, per pill.

Is it illegal?  Under the federal Narcotic Control Regulations (made under the Controlled Drugs and Substances Act, 1996), “a person who has received a prescription for a narcotic shall not seek or receive another prescription or narcotic from a different practitioner without disclosing to that practitioner particulars of every prescription or narcotic that he or she has obtained within the previous 30 days”. To wit, in 2006, a Toronto woman was charged with filling prescriptions for almost 14,000 pills at nine pharmacies across the province.

How is it monitored?  Nine of ten provinces have some form of system in place to track prescription-related information such as double doctoring. As an example, in 2008, Health Canada ordered pharmacies in Atlantic Canada to track narcotic prescriptions by family physicians after rates of narcotics abuse were found to be highest in that region. However, since there is no national surveillance system in place, the monitoring of doctor shopping and fraudulent prescription drug acquisition in Canada is a patchwork approach, at best.

How big is the problem?  In 2002, Canada reported the fourth highest per-capita use of prescription narcotics in the world. The Centre for Addiction & Mental Health, in a study published that same year, indicated that 11% of admissions to substance abuse treatment programs in Ontario were for prescription drug abuse. A 2007 study released by the Canadian Centre on Substance Abuse (CCSA) cited evidence that “Canadians are among the heaviest consumers of psychotropic medication in the world”. And according to a 2008 study published in the journal Contemporary Drug Problems, North America has the world’s highest consumption of medical prescription opioids (consumption levels have, in fact, doubled in the past decade). Earlier this year, Narconon Alcohol and Drug Rehab Center reported that nearly half the calls they receive are with regards to prescription medications (primarily Oxycodone, Percocet and morphine).

How does prescription drug abuse relate to mental capacity?  The most coveted drugs targeted by doctor shoppers are the opioids (including morphine, codeine-containing Tylenol 2s, 3s and 4s, Percocet/Percodan, OxyContin and other pain-relieving agents) and the benzodiazepines (including Valium, Serax, Xanax, Ativan and Halcion and other agents used for sedation, relief of anxiety or as muscle relaxants). These drugs are known to have detrimental effects on perception, attention, alertness, memory, orientation, attention and decision-making.

Jennifer Hartman, guest blogger
 

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The Court has discretion to order a capacity assessment pursuant to section 79 of the Substitute Decisions Act, if the person’s capacity is an issue in a proceeding under the SDA and it is satisfied that there are reasonable grounds to believe that the person is incapable.

Section 6 of the SDA defines the test for incapacity as follows:

• 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.

In determining whether to order a capacity assessment courts have considered the following to strike the appropriate balance between the autonomy of the individual and the duty of the state to protect the vulnerable:

1.      the purpose of the SDA and the terms of section 79;

2.      the nature and circumstances of the proceedings in which the issue is raised;

3.      the nature and quality of the evidence before the court as to the person's capacity and vulnerability to exploitation;

4.      if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;

5.      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;

6.      whether the assessment will be necessary in order to decide the issue before the court;

7.      whether any harm will be done if an assessment does not take place;

8.      whether there is any urgency to the assessment; and

9.      the wishes of the person sought to be examined, taking into account his or her capacity. 

Where a capacity assessment has already been obtained, the court will be reluctant to order a further assessment unless it  has concerns about the adequacy or objectivity of the first assessment.  In Ranieri v. Ranieri Estate the court considered the factors above and refused to order a second assessment. 

Sharon Davis - Click here for more information on Sharon Davis.

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A conversation about driving with dementia exploded in the press in recent weeks. Everyone is weighing in on this debate, with potential stakes running obviously high. Certainly the decision to take away a patient’s licence could never be undertaken lightly, so how can a physician accurately determine driving risks associated with dementia?

A patient’s score on the Mini-Mental Status Examination (MMSE) score, when considered on its own, is a surprisingly poor predictor of a driver’s ability to drive safely. In fact, studies have shown that as many as 76% of patients with mild dementia are still able to pass an on-road driving test. Last month, in a strong effort to refine the entire process of assessing driving risk associated with dementia, the American Academy of Neurology issued updated guidelines for physicians. These updated practice parameters take into account the following characteristics that have proven useful for identifying patients at increased risk for unsafe driving:

• Clinical Dementia Rating Scale (CDR);
• A caregiver’s rating of a patient’s driving ability as ‘marginal’ or ‘unsafe’;
• The patient’s driving history, including accidents and citations;
• Self-reported ‘situational avoidance’ [Studies have shown that self-restricted driving, perhaps by avoidance of highway driving or night driving, or driving in inclement weather, or simply reduced overall mileage, is an accurate indicator of a driver at increased risk];
• An MMSE score of 24 or less; and
• Aggressive or impulsive personality characteristics.

This multi-faceted risk assessment brings the Americans more in line with the current Canadian approach, as outlined in the Canadian Medical Association’s document: Determining Medical Fitness to Operate Motor Vehicles CMA Driver’s Guide which takes this stance: "The driving ability of people with mild dementia should be tested on an individual basis. Studies have shown that a significant percentage of those in the early stages of dementia are able to operate a motor vehicle safely."

Jennifer Hartman, guest blogger

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In the course of reviewing medical records in advance of estate litigation, one will encounter a wide variety of cognitive screening tools used to identify cognitive impairment. A handful of these tools are described here:

• Confusion Assessment Method (CAM): an ICU assessment tool used to detect the presence or absence of delirium. A CAM assessment is usually carried out once every 8-12 hours (once per nursing shift). Results are presented as either ‘CAM-positive’, or ‘CAM-negative’, indicating the presence or absence of delirium, respectively.
• Mini-Mental Status Examination (MMSE): a quantitative measure of cognitive status in adults. Despite its well-documented limitations, the MMSE is the most widely used standardized cognitive screening test in both clinical practice and research. Scores (out of a maximum 30 points) are paired with an associated level of impairment, i.e. no impairment, mild impairment, moderate impairment or severe impairment.
• The Montreal Cognitive Assessment (MoCA): a rapid cognitive screening instrument used to detect mild cognitive impairment. This user-friendly tool assesses attention and concentration, executive functions (these are the high-level abilities that control more basic abilities and behaviours), memory, language, conceptual thinking, visuoconstructional skills, calculation and orientation. Studies have shown the MoCA to be far more sensitive than the Mini-Mental Status Examination (MMSE) in its ability to detect mild cognitive impairment.

There are dozens of other cognitive screens in use including the Mini-Cog, the Rowland Universal Dementia Assessment Scale (RUDAS), the Clinical Dementia Rating (CDR), the Memory Impairment Screen (MIS), and the recently published Self-Administered Gerocognitive Examination (SAGE). In the context of a dispute regarding testamentary capacity, cognitive screening results are valuable for the estate practitioner, in that they provide tangible, measurable, time-sensitive information regarding the testator's cognitive functioning, and serve as a tool for assessing the progression of the impairment.

Jennifer Hartman, guest blogger
 

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A fifth edition of the Diagnostic and Statistic Manual of Mental Disorders (known as the "DSM-IV") is imminent, according to the chair of the task force responsible for the fourth edition, Dr. Allen Frances, quoted in this National Post article.  The DSM-IV is considered the most authoritative manual for defining and classifying mental illnesses. 

The relevance to capacity litigation is that the language doctors use to talk about patients and record their observations may change, perhaps significantly.  According to Dr. Frances, revisions to the definitions of attention-deficit hyperactivity disorder, autism and childhood bipolar disorder (i.e., manic depression) resulted in an unintended 40-fold increase in rates of diagnosed bipolar disorder.  A patient's diagnosis is a major variable in his or her treatment.  There was a dramatic increase in prescriptions of anti-depressants over this period.

Revised definitions would not necessitate corresponding changes in legal capacity, of course.  The tests for the various levels capacity are functional in nature; they evaluate an individual's observed ability to make decisions and do things.  Good capacity assessments tell a story, and the elements of the story must support the conclusions reached.  If not, the assessment will be rejected.  Re Koch is instructive on this point.  It is hard to read the judgment and imagine that including medical terms would have made any difference at all. 

On the other hand, changes to the DSM-IV may be very relevant for expert opinions on capacity given after an individual's death, where the opinion relies heavily on medical reports and observations of treating physicians to assess an individual's capacity at a specific time during that individual's life. 

Have a great day,

Christopher M.B. Graham - Click here to learn more about Chris Graham.