CAPACITY LITIGATION

Capacity litigation covers legal disputes that turn on whether a person had (or has) the mental ability to make a specific decision. That decision could be making a will, signing a power of attorney, transferring property, or managing their own affairs.

In Ontario, every person is presumed to have capacity. Overcoming that presumption requires compelling evidence: medical records, expert assessments, witness accounts, and a clear legal argument.

How We Help

Challenging a Will: If someone lacked the mental capacity to understand what they were signing when they made their Will — due to dementia, cognitive decline, medication, or another condition — that Will may be invalid.

Challenging a Power of Attorney: A Power of Attorney signed when the person lacked capacity is legally invalid. If someone obtained a POA over a vulnerable person who did not understand what they were signing, we can challenge it.

Guardianship Applications: When someone can no longer manage their own property or make personal care decisions — and there is no valid power of attorney in place — a court-appointed guardian may be necessary.

Who We Help

Adult children concerned that a parent was manipulated into signing a will or power of attorney.

Beneficiaries under an earlier Will who believe a later Will was made when the deceased lacked capacity.

Trustees and executors who need legal guidance where a capacity issue affects the administration of an estate.

Frequently Asked Questions

How do you prove someone lacked capacity?
Capacity is proven through a combination of medical evidence — diagnoses, clinical notes, cognitive assessments — and lay evidence from people who observed the person's behavior and state of mind at the relevant time. Expert evidence from a physician or capacity assessor is often critical.
Can a power of attorney override a guardianship application?
A valid, properly executed power of attorney generally takes precedence over a guardianship application because the person has already appointed someone to act for them while they had capacity. If the POA itself is being challenged, the two proceedings often run together.
How long does a guardianship application take?
An uncontested guardianship application typically takes several months. Contested applications — where family members disagree or the capacity finding is disputed — can take significantly longer.

Contact Pinto Shekib LLP, Your Toronto Capacity Litigation Lawyers

Call 416.901.9984 or email info@pintoshekib.ca for a confidential consultation.