Toronto Capacity Lawyers
Capacity law refers to a broad range of issues respecting legal capacity.
Capacity law can relate to who exercises decision-making authority – and with what restrictions and limitations – in matters affecting the interests and rights of an incapable person, regarding the incapable person’s property and various domains of personal care matters, including medical treatment. It can encompass planning for legal incapacity and litigation respecting it.
Evenson Bundgard LLP’s Toronto Capacity Lawyers offer legal services in capacity law including:
Powers of Attorney
A Power of Attorney can speak to your circumstances when you are living but need someone to act for you – for example, if you should become incapacitated.
There are two basic Power of Attorney documents: one for property, and another for personal care.
Depending on what you stipulate, the authority you grant to someone (typically a spouse, close relative, or trusted friend) to administer your property under a Power of Attorney for property could be exercised either when you have capacity or lack capacity. At your option, the authority you grant to your chosen attorney to administer your property could be wide or, conversely, restricted.
The authority you grant under a Power of Attorney document for personal care however only is effective if you become incapacitated. The person whom you appoint can make decisions affecting you in a number of personal care domains, such as including your medical treatment, where you reside, your nutrition, etc. In the document, you may provide binding directions or guidance to your attorney respecting your wishes on how relevant care decisions should be made and implemented. Of increasing importance to many clients, a Power of Attorney for personal care also can incorporate provisions detailing what “end-of-life” medical treatment choices you would like made on your behalf.
Questions of whether powers of attorney validly have been granted, or whether an attorney appropriately is exercising authority under the granted powers, may be issues subject to litigation.
Evenson Bundgard LLP’s Toronto capacity lawyers have the experience to create Powers of Attorney documents that meet your unique needs, and to litigate matters concerning powers of attorney.
Guardianships
A person for whom you care deeply may come to lack the capacity to make required decisions concerning their property or person. If an incapable person does not have valid Power of Attorney documents appointing someone to act on their behalf, you may have to proceed to court to seek a guardianship respecting their property or person. Or, you may wish to replace the Public Guardian and Trustee who already may hold statutory guardianship over a loved one.
In other situations, it may be you who is the focus of a contested guardianship application. You may have full capacity but need assistance in establishing that fact and in resisting an effort by another person who seeks a guardianship order over you or your property.
Evenson Bundgard LLP’s Toronto capacity lawyers can help represent and steer you through the complicated processes of statutory or court-appointed guardianships, or of holding to account those persons who are appointed as guardians to ensure that they act with integrity, probity, and competence.
Mental Health Law
You or your loved one may suffer from a claimed serious mental disorder or mental incapacity. In such circumstances, a physician might issue certifications or make determinations with far-reaching impacts on legal rights, and on liberty, personal autonomy, and medical treatment decisions − possibly even those affecting end-of-life decision-making. You may need sound legal advice and representation respecting a hearing before Ontario’s Consent and Capacity Board (“CCB”).
The CCB is an administrative tribunal. It is vested with jurisdiction to hear and determine summarily a wide range of prescribed health care and capacity matters in connection with decisions made under a number of statues including, in particular, the Mental Health Act, the Health Care Consent Act, 1996 and the Substitute Decisions Act, 1992. Hearings proceed before a panel of CCB members by way of application. Depending on the nature of the issue for determination, applications may be brought before the CCB by persons including hospitalized patients, their family members, physicians and other health care providers, or even by the CCB itself as a “deemed” application. A key advantage of the CCB process is that hearings typically are conducted within 7 days of applications being filed; furthermore, CCB decisions normally are rendered within 24 hours following the close of hearing. Written reasons for CCB decisions may be requested and must ordinarily be provided within 4 business days from the date of the request.
Matters which may be brought before the CCB for determination include, without limitation:
- whether certifications, made by physicians under the Mental Health Act, that a hospitalized patient satisfies the statutory prerequisites for admission or continuation as an involuntary patient (i.e. under circumstances of detention, restraint, observation and/or examination of the patient in order to avoid serious bodily harm, serious physical impairment, and/or substantial mental or physical deterioration), continue to be met at the time of the hearing
- reviews of Community Treatment Orders made under the Mental Health Act
- reviews of findings made by psychiatrists, under the Mental Health Act, that an admitted patient lacks the capacity to manage property
- whether findings, made by physicians or other health care providers under the Health Care Consent Act, 1996 that a patient lacks the requisite capacity to make decisions with respect to treatment, admission to a care facility, or a personal assistance service, remain valid
- directions on what are the expressed prior capable wishes of an incapable person respecting treatment, admission to a care facility, or personal assistance service decisions, and whether those prior capable wishes, if discernible, are applicable to the circumstances requiring a decision; or, if the person’s prior capable wishes cannot be determined or cannot be found to be applicable to the circumstances, directions of what decision respecting treatment, admission to a care facility, or personal assistance services is in the incapable person’s best interests
- permission for a substitute decision-maker, when making decisions on behalf of an incapable person respecting treatment, admission to a care facility, or personal assistance services, to depart from the known prior capable wishes of that person
- determinations whether or not a substitute decision-maker has complied with the rules for substitute decision-making on behalf of an incapable person
- the appointment or removal of representatives for incapable persons respecting treatment, admission to a care facility, or personal assistance service decisions
Parties to a hearing who are dissatisfied with a hearing outcome may appeal the CCB’s decision to the Ontario Superior Court of Justice within 7 days of their receipt of that decision. Appeals are scheduled for hearing by the Court’s Estate Division but typically are not heard for many months following the CCB’s decision.
Evenson Bundgard LLP’s Toronto capacity lawyers have the experience and skill to help you navigate the complex intersections between mental health law, consent and capacity issues, and legal proceedings, including applications before Ontario’s Consent and Capacity Board and courts.
Contact us online for further information about our Toronto Capacity Lawyers service.