Capacity Litigation
Power of Attorney, Guardianship and Capacity Disputes
It can be frightening and painful to watch a loved one lose their self-reliance and independence, whether gradually because of an illness like dementia, or abruptly as a result of an accident or sudden illness.
The loss of one person’s capacity poses major challenges for their family members and friends, who may struggle with the practical problem of arranging proper care on top of coping with the emotional strain. These challenges are multiplied when there are disagreements over how to best protect the incapable person, whether the issues involve their personal care or their financial well-being.
In Ontario, legislation like the Substitute Decisions Act, 1992 and Health Care Consent Act, 1996 governs the rights and obligations of incapable persons and those who care for them. It gives them access to the courts to resolve their disagreements.
Sometimes disputes in court are unavoidable – especially in serious cases involving financial, physical, or sexual abuse and neglect of an elderly or otherwise vulnerable person. However, we are strong believers in looking for creative and practical solutions to resolving most family disputes out of court and in the best interests of the incapable person.
We often take a multidisciplinary approach by working with public and private care providers, functional needs assessors, care consultants and agencies, financial advisors, trust companies, and others to come up with a plan that meets the needs of the incapable person and their family.
We represent potentially incapable individuals, family members, attorneys for property, attorneys for personal care, guardians of property, guardians of personal care, and others with an interest in the care and well-being of incapable individuals.
The following are some examples of typical cases that we are involved in:
- Disputes about a person’s capacity to manage their own property and personal care
- Disputes over who has the authority to manage an incapable person’s property and personal care
- Disputes over how the incapable person’s property and personal care have been managed in the past or will be managed in the future
- The protection of vulnerable older adults from abuse by predators, including caregivers, neighbours, and others
- Applications to court to appoint or remove a guardian
- Applications to court in disputes between powers of attorney
- Advice and representation of attorneys, guardians, alleged incapable persons, family members, and other stakeholders in power of attorney, guardianship and capacity disputes