Commercial Litigation and Dispute Resolution Blog

It is increasingly common for clients to ask what legal steps are available to help them care for aging parents or relatives.  Generally, they have a relative who is slowly slipping into dementia or some other incapacitating state.  In recent years, the law has done much to remodel the legal landscape to better address these types of situations.  There are new or revised statutes that govern things such as powers of attorney, representation agreements, adult guardianship, living wills and the like.  These are all tools that can help families and patients cope with difficult health care and capacity issues.

One of those tools, provided for in the Patients Property Act (the “PPA”), is the ability to apply to court to be appointed as a “committee” for an individual who has become incapable of looking after themselves or managing their financial affairs.  A committee has the full legal authority to look after the person and their financial affairs.  In order to obtain such an order, there must be written opinions from two doctors setting out their opinion that the patient suffers a mental incapacity that prevents them from looking after themselves or managing their financial affairs. 

However, problems can arise if, for some reason, the patient cannot to be examined by a doctor in order to determine capacity.  For example, the patient may refuse to go to a doctor or they may be under the influence of another who is preventing this from happening.  The PPA is very specific: without two medical opinions that the person is incapable, the court is legally unable to appoint a committee.  This can be very frustrating for family members.  In such a case, how can you compel a medical examination in order to determine capacity? 

One of those tools, provided for in the Patients Property Act (the “PPA”), is the ability to apply to court to be appointed as a “committee” for an individual who has become incapable of looking after themselves or managing their financial affairs. A committee has the full legal authority to look after the person and their financial affairs. In order to obtain such an order, there must be written opinions from two doctors setting out their opinion that the patient suffers a mental incapacity that prevents them from looking after themselves or managing their financial affairs.

However, problems can arise if, for some reason, the patient cannot to be examined by a doctor in order to determine capacity. For example, the patient may refuse to go to a doctor or they may be under the influence of another who is preventing this from happening. The PPA is very specific: without two medical opinions that the person is incapable, the court is legally unable to appoint a committee. This can be very frustrating for family members. In such a case, how can you compel a medical examination in order to determine capacity?

This was a problem faced recently by Lynn Temoin who had reason to believe her elderly father, Mr. Martin, was incapable and in need of protection. Her father, a man of considerable wealth, had remarried. His second wife persuaded Mr. Martin to revise his estate planning such that she and her children would benefit generously. Mrs. Temoin took the view that, at the time this was done, her father did not have the required mental capacity. Her problem was that she could not persuade her father to see a physician to get an opinion on his mental capacity. Without medical opinions, the court could not appoint a committee for Mr. Martin.

As a result, Mrs. Temoin applied to court for an order compelling her father to be assessed by two geriatric physicians for the purposes of providing opinions on whether he was competent. While this seems a sensible step, it is not one the courts are authorized by statue to take and one that the courts have always been very reluctant to order.

In deciding to grant this order, the court in Mrs. Temoin’s case provided a judicial precedent that will make it easier in future to seek such orders. The court relied on its inherent or parens patriae jurisdiction which provides it with the ability “to protect those who are unable to make decisions or to care for themselves.” That jurisdiction can only be exercised where there is no legislation governing the area. If there is a legislative gap, the jurisdiction can only be exercised in the best interests of the incompetent person.

Relying on these principles, the court found that there was a legislative gap in the PPA. The PPA does not authorize a court to order a medical examination where the person affected is uncooperative and it is impossible to obtain the necessary medical affidavits. Indeed, to order a medical examination conflicts with the fundamental principal of personal autonomy and the presumption of capacity. For example, the Adult Guardianship Act creates a legal presumption that every adult is capable unless shown otherwise. As the court noted, “given the presumption of competence, an individual should not be forced to undergo a medical examination that seeks to establish incapacity absent his or her consent.” “. . . [C]ompelling a person to submit to a medical examination is intrusive to personal autonomy and any order doing so would have to respect the values of the Canadian Charter of Rights and Freedoms.”

With this as the starting point, the court found that although there was insufficient “medical evidence” about Mr. Martin’s capacity, there was other evidence that did establish, at least at first instance, that he was incapable and at some risk. That evidence was from individuals who testified about Mr. Martin’s declining mental acuity and cognitive ability. It was compelling enough that the court found the “legislative gap” needed to exercise its parens patriae jurisdiction and order Mr. Martin to be examined. The “gap” existed between situations where the two required medical opinions were present (governed by the PPA) and situations where there was non-medical “‘proof of incompetence’ and where there is a compelling need for protection” (a situation the PPA does not address).

This is a very helpful decision to those who seek a committeeship order in the face of uncooperativeness or opposition. If medical evidence cannot be obtained, then other evidence of incapacity and the need for protection can be used as a means to obtaining the required medical evidence. This type of evidence can come from care-givers, relatives and family friends. If that evidence establishes that “the person who is the subject of the application is prima facie incompetent” and in need of protection, then the court may order medical examinations by two physicians to determine the medical question of capacity. Once that is done, the application for a committeeship under the PPA can be made. If appropriate, a committeeship order will be made.