man and woman, looking a clipboard presented by another man

Approaching Capacity: Addressing a Growing Issue in an Aging World

  • December 05, 2019
  • Michael Bernard

Legal capacity can be called into question for a great number of reasons, but as Canada and the rest of the world face the largest demographic shift of humankind, with more seniors than ever before, the issues of legal capacity due to advancing age are being played out more often.

In 2017, there were an estimated 962 million people aged 60 or over around the globe, more than twice as many as there were in 1980, and that number is expected to double by 2050, according to figures from the United Nations. In Canada, the number of those aged 65 or over is predicted to be around 12 million by 2050, up from 6.4 million in 2018, according to Statistics Canada. And as these seniors’ life expectancy increases even more, the likelihood that they experience cognitive issues escalates.

No aspect of law is exempt – from family and civil rights to corporate, real estate and criminal. For instance, in family law, capacity can be called into question concerning marriage, divorce, the allocation of gifts, personal care and custody issues. In real estate law, an older adult’s property interests need to be safeguarded and their capacity to transfer and manage property as well as give powers of attorney over property need to be assessed. In corporate law, a client’s ability to make organizational decisions, instruct, delegate and act as a director come into play.

Lawyers need to know more about legal capacity

This “perfect storm” of a larger senior demographic is behind the concerns expressed by three expert practitioners of elder law in Ontario, who are urging their legal colleagues to learn more about one of the fundamental issues that arise in a lawyer’s practice: the meaning and application of legal capacity of a client to decide everything about their lives, including their future care, their marital status and the details of their will.

“Capacity is very complex and it affects everybody,” says Kimberly Whaley, the founding partner of Whaley Estate Litigation Partners of Toronto. “It affects the hospitals, the health-care professionals, insurance industry, investment advisors, bankers and the public at large. It is a common thread through everything.”

And yet, she notes with some exasperation during an interview at a recent elder law conference in Vancouver, there isn’t a single law school in Ontario that offers a course on the legal concept of capacity, even as this age tsunami barrels through Canadian society.

Natalia Angelini, of Toronto law firm Hull & Hull LLP, is also chair of the OBA’s Elder Law section.

“We are trying to put on timely and relevant programming that gets more of the lawyers educated about these issues,” she says.

There is more and more litigation involving elderly people with guardianship applications or attorneyship disputes, she says. With that comes an increasing reliance on the Substitute Decisions Act, and its section 3, which allows the courts to appoint a lawyer to act for the client and his or her best interests.

“It is an important role that is not always well understood by lawyers, even those practising in the area,” says Angelini.

Recognizing incapacity is not always easy

It’s not just Alzheimer’s disease and dementia, says Whaley. Alcoholism, drug abuse, even a urinary tract infection, can affect a person’s ability to make decisions.

“Even though general practitioners might have handled their elderly clients’ affairs for many years, they often don’t know until the client comes in to see them what is involved. Identifying what’s going on can be difficult. Nobody is going to come in and say, ‘I’ve been having a bit of trouble dealing with my financial affairs lately.’ No one is going to admit it because they’re afraid. They are fearful that they will let others know they are vulnerable. It’s tricky for everybody.”

Kristine Anderson, partner at Bales Beall LLP in Toronto, has been practising family law in Ontario for 20 years. She cautions that  lawyers have to be especially alert these days to capacity issues and must come up with their own methods for assessing their client’s capacity to make decisions about themselves. While a general practice lawyer may believe they know their clients, after having years of dealing with property conveyances, purchases and other legal matters, capacity presents a whole new set of problems.

Anderson says that, over the years, she has developed her own ways of assessing a client’s capacity.

“Sometimes, I will have the client come in meet them separately [from the companion or adult children]. Then I will wait a day or so and call them to see if I can get the same client instructions over the phone. Sometimes, I will even feed [the client] the wrong information. I will say, ‘so you have two children’ when I know they have three to see if they correct me. That’s a real simple tactic to assess capacity,” Anderson says.

Lawyers need to protect themselves, not just the client

Some lawyers might feel uncomfortable in this role, she acknowledges. 

“It might feel like you are being a little intrusive or you may feel you shouldn’t be questioning this person’s capacity and that you know them because they are your client. But you really have to remember that, as a lawyer, you are also protecting the record and you are protecting yourself.”

Anderson, who often is called into disputes involving lawyers being sued for their missteps involving capacity, says it is imperative that lawyers take notes regarding their observations about a client’s capacity.

“You are also protecting that person to ensure these are their wishes. If that person passes away, and this is all coming into question after the fact, then your notes and records are going to be incredibly important to protect what their intention was.”



The following is an edited condensation of “Red Flags for Incapacity” that was developed and posted on Whaley Estate Litigation Partners’ website. The complete version of this and other checklists for such issues as capacity to marry, sell property and provide instruction to a lawyer are also available on the firm’s website.

  • Cognitive, emotional or behavioural signs such as memory loss,

communication problems, lack of mental flexibility, calculation problems or

disorientation of time person and/or place

  • Hesitation or confusion
  • Short-term memory problems: repeating questions frequently, forgetting what was discussed earlier in conversation, being unable to remember events of past few days
  • Communication problems: difficulty finding words, vague language, trouble

staying on topic or disorganized thought patterns

  • Comprehension problems: difficulty repeating simple concepts and understanding repeated questions
  • Calculation or financial management problems, such as difficulty paying bills
  • Significant emotional distress: depression, anxiety, being tearful or distressed, manic and excited, or having feelings inconsistent with topics
  • Intellectual impairment
  • Inability to readily identify assets or family members
  • Experiencing recent family conflict
  • Experiencing recent family bereavement
  • Lack of awareness of risks to self and others

Learn more about Legal Capacity by participating in the Elder Law "Capacity for Lawyers" Passport Series.