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| Charles Wagner |
For example, does such a person coming to the office seeking a new will possess the capacity to instruct counsel? How about testamentary capacity? Is the child who gave their parent a lift to the office for the appointment exerting undue influence? How should the lawyer deal with the intergenerational agreement to transfer wealth that is inconsistent with past estate planning?
Perhaps the client is in a second or third marriage and there is an issue surrounding capacity to marry, and the care of children from previous marriages. What about the client who is battling for control over their parent’s assets and whose motivation is suspect, or the client who looks to litigate end-of-life issues in a way incompatible with their elderly parent’s expressed wishes?
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What makes issues like the determination of capacity of an elderly person difficult for lawyers is that it is context specific. For example, consider that an older adult may have health conditions that impact vision and hearing; sometimes these are simply problems that impact communication rather than cognition. Other times cognition is clearly at issue, but here, too, the context may be complicated — a person’s cognitive capacity may “fluctuate” and be better or worse at certain times of day or through medication.
The legal context also must be considered. In litigation involving substitute decision-making, the court may compel a capacity assessment to determine such issues. In conventional litigation where a Litigation Guardian may be required, the capacity issue must be determined before anyone may act as a Litigation Guardian. For lawyers who dabble in this area, the issues can be a minefield.
Is there a health issue like hearing impairment that, if addressed, would resolve the question of capacity? Is it the time of day that gives rise to concerns because that’s when the medication being taken negatively impacts the elderly person’s capacity?
Moreover, it’s not just the facts of the case, but the type of litigation and statute involved. For example, in dealing with capacity under the Substitute Decisions Act and related issues like capacity to manage care and property, the threshold for a judge ordering a capacity assessment is much different than in a commercial litigation case under Rule 7 where the party’s ability to give instructions, their status as a person under disability or capacity to represent themselves is an issue. Lawyers dabble in this area at their own risk.
Another factor of key concern is undue influence and elder abuse. This is not only a concern for the lawyer representing the elderly client, but it is also a concern when representing a member of that older adult’s family. The person in question may have a razor-sharp memory and possess all their faculties but be at a stage of life that they are excessively vulnerable to pressure. How should one go about protecting that client?
Alternatively, how does a lawyer protect a family member from being wrongly accused of exercising undue influence? Achieving competency in this area is not just about studying the case law; there are practical steps that experienced lawyers can share that will make all the difference. It is for that reason that Wagner Sidlofsky LLP and the chair of the B’nai Brith Estates and Trusts Group decided to present a series of lunch and learn CLE seminars titled, “Strategies, Advice & the Elderly.”
There will be nine lunch and learn Zoom sessions featuring leading professionals including Clare Burns, Craig Vander Zee, Elena Hoffstein, professor David Freedman, Gregory Sidlofsky and David Wagner, as well as a host of other lawyers with extensive experience in dealing with older adults and related issues. Each session is eligible for substantive and professionalism credits. There is no fee for the sessions. For more information and to register, please visit here.
Charles Wagner is designated as a certified specialist in estates and trusts law by the Law Society of Ontario and a partner at Wagner Sidlofsky LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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