C'est la Vie Estate Law Blog

  If you’re acting as an attorney for property and the grantor has dementia, deciding whether gifts can be given requires balancing their wishes with your legal responsibilities under Ontario’s Substitute Decisions Act , 1992 (SDA) . Your Authority to Give Gifts As an attorney for property, you can only make gifts on the grantor’s behalf if: Explicitly Authorized : The Power of Attorney (POA) document specifically permits gifting. Statutory Rules Apply : If the POA document is silent, the SDA allows gifts under these conditions: The grantor’s financial needs (current and future) are secure. The gift is consistent with the grantor’s past practices or known intentions. Assessing the Grantor’s Wishes If the grantor, even with dementia, expresses a desire to give a gift: Evaluate their capacity : Ensure they understand the nature, value, and consequences of the gift. If their capacity is uncertain, seek a professional assessment. Respect their history : Consider their past gifting prac...

Understanding Capacity in Will-Making in Ontario In Ontario, the concept of capacity is crucial when it comes to creating a valid Will. Capacity refers to an individual’s mental ability to understand the nature and consequences of making a Will, as well as the implications of their decisions regarding the distribution of their estate. To have the legal capacity to make a Will, a testator (the person making the Will) must generally meet three criteria: they must understand the nature of the act of making a Will, recognize the extent of their assets, and comprehend who their beneficiaries are and the effects of their choices. This means that even if someone has a medical condition or is receiving treatment, they may still possess the capacity to make a Will, provided they can satisfy these requirements. In Ontario, there is no strict age for capacity, but individuals must be at least 18 years old. Importantly, the law recognizes that capacity can fluctuate; thus, it’s advisable for those...