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CAPACITY LITIGATION

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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.