Capacity Law

Total 143 Posts

Videographers Beware

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Occasionally, those hoping to demonstrate the capacity of a testator will film a video of the testator purporting to show that they were cognitively intact or that the will was a reflection of their independent and capable wishes. Unfortunately, the naïve interviewer makes the mistake of confusing the preservation of social graces for intact cognition and considers passive acquiescence as evidence of independence of mind. Clinicians understand, or should understand, that one….

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Capacity Law, Contested wills, Estate Litigation, Family Conflict, Undue influence

The 1870 Test for Testamentary Capacity: time for an update

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The leading case on testamentary capacity for almost 150 years has been that of Banks v Goodfellow – a judgment written on appeal by Chief Justice Cockburn of the English High Court in 1870.  The four broad criteria that emerged from his judgment have formed the basis of virtually every Will challenge case since that time – this, despite the fact that a few things have changed since 1870.  This….

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Capacity Law, Estate Litigation

DISABILTY TAX CREDIT CERTIFICATE: WHO CAN CERTIFY?

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Which medical professionals can certify on a Disability Tax Credit Certificate (“Form T2201”), that an individual has a severe and prolonged impairment in physical or mental functions? Can a registered oral surgeon or other oral specialist, licensed to be so by a provincial body be considered to be a medical doctor in that province for the purpose of certifying on Form T2201 that an individual has an impairment in speaking….

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Canada Revenue Agency, Capacity Law, Disability, Elder Care, Estate Planning, Fiduciary Professions, Geriatric Care Management, Guardianship, In the News, Power of Attorney

Vulnerability to Undue Influence

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On September 28 I will be joining Charles Ticker, Charles Wagner, and David Smith in a panel discussion on ‘Dealing with Undue Influence Issues’ as part of the 2016 Practical Guide for Legal Professionals – ‘Advising the Elderly Client’ conference hosted by Osgoode Hall Law School in Toronto. I will be addressing the issue of vulnerability to undue influence. Although the traditional legal view of undue influence requires coercion,[i] [ii]….

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Capacity Law

Robots are Judging You

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The legal test for testamentary capacity is well-established in Ontario. In making a determination of whether or not an individual had the capacity to make a will, the evidence of a certified capacity assessor is often given great deal of weight. However, scientific developments have led to a new type of assessor of a person’s mental health. Meet Ludwig, an artificially intelligent robot who was created to track and monitor signs of Alzheimer’s disease or dementia…..

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Capacity Law, Elder Care, Elder Law, Testamentary Capacity, Wills

My First Experience with Medical Assistance in Dying (MAID)

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After approval of the legislation, it did not take long for one of my patients (identity disguised) to request access to MAID.  I knew that this was a possibility because of previous discussions regarding the eventual outcome of her debilitating and progressive medical condition.  However, it had been couched in terms of a sense of security just to know that the option was available.  In recent months, her condition deteriorated….

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Capacity Law, Estate Planning
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