Capacity Litigation

Capacity is a complex issue. Generally, a person is presumed to be capable unless there is evidence to the contrary. A person is rarely “globally” incapable since different types of tasks require different levels of capacity. A person can be capable of making some decisions and performing some tasks, but incapable of making other decisions or performing other tasks. For example, a person can be capable of making decisions regarding his or her hygiene, but not capable of making a decision regarding whether or not he or she should proceed with a specific health treatment. Another example is that a person can be incapable of managing his or her property, but capable of granting a power of attorney for property. Capacity is also a complex issue because a person’s capacity is fluid with respect to time – a person’s capacity to do a specific task or make a specific decision can fluctuate based on a variety of factors, such as the progression or regression of an illness, when the person has “good” and “bad” days, and whether a person’s disabilities were accommodated when capacity was tested.

Given these complexities, capacity issues can lead to a variety of disputes, including disputes about:

  • Whether a person was capable of instructing his or her lawyer with respect to preparing certain documents, like wills and powers of attorney;
  • Whether a person is capable of making his or her own personal care decisions and managing his or her own property;
  • Whether a person’s incapacity requires the appointment of guardian of property or personal care;
  • Who should be an incapable person’s substitute decision maker;
  • The manner in which a substitute decision maker is making decisions for an incapable person;

Whether the person had capacity to do a certain task such as marry, sign a contract, sell a house, or make a decision for another person as his or her substitute decision maker.


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Telephone: 416-928-6685
Fax: 416-928-6748