Estates & Wills & Trusts

Capacity concerns with elderly estate planning

While capacity issues are prevalent at any age, they are statistically most common in the elderly population, Toronto estates and trusts lawyers Ian M. Hull and Suzana Popovic-Montag in Huffington Post.

"Many of us decline in mental and physical ability as we age and capacity becomes more of a concern with older people. However, it is a well-known pillar of capacity law that practitioners cannot assume that capacity is an issue. It is the professional’s responsibility to probe and verify in order to confirm or dispel any concerns they may have with an assessment of capacity," say Hull and Popovic-Montag, partners with Hull & Hull LLP.

For example, they write, if a client is presenting well but a lawyer does not pay enough attention to certain signs indicative of capacity issues, the lawyer could end up being responsible for difficulties later on.

"People with capacity issues often present well and have good social manners, which may sometimes mask signs that they are having difficulty understanding all aspects of matters before them. A lawyer needs to assess whether issues presented are indicative of an ongoing mental problem or only a passing concern," they write.

In Ontario, the Substitute Decisions Act sets out the test to be used in certain situations, but capacity is both a legal and medical concept – making it difficult for a lawyer to assess.

"Lawyers are ultimately not doctors and are not well-equipped to perform medical assessments," Hull and Popovic-Montag write. "They have to react to the circumstances at hand. Lawyers need to be able to rely to a certain degree on the opinion of medical practitioners. However, a medical note indicating capacity or a lack thereof is not always determinative. A medical opinion becomes simply a piece of the legal evidence on capacity."

They suggest using delicate conversation as a way of extracting issues of capacity with elderly clients.

"A good way of encouraging openness is by advising the client that the more probing into his or her circumstances and level of capacity that is done, the greater the likelihood that his or her estate plan will withstand subsequent challenge," they write.

It is important to keep in mind that it can be "difficult to distinguish between someone having trouble understanding a particular fact or situation, having difficulty with language or hearing, or suffering from dementia," Hull and Popovic-Montag write. "Perhaps a slow response is an indication that the individual is taking time to consider a decision or is simply hesitant, as opposed to incapable."

A recent episode of Hull & Hull TV, also featured in Huffington Post, discusses capacity issues with special guest Laura Tamblyn Watts.

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