|
Mental Health - Capacity for Personal Care and Property. Falsetto v. Falsetto
In Falsetto v. Falsetto (Ont CA, 2023) the Court of Appeal held that when an attorney (under a power of attorney) acts with the informed consent and at the direction of the donor, they are thereby not acting in a fiduciary capacity:[48] For these reasons, I accept Salvatore’s submission that Sam was a fiduciary both in respect of Salvatore’s bank accounts and in his use of the Power of Attorney, and the trial judge erred in law in finding otherwise.
[49] However, in my view, the trial judge made no error in concluding that Sam did not act in breach of his fiduciary obligations. On the trial judge’s findings, Salvatore authorized all of the impugned transfers. Therefore, when Sam acted as attorney to transfer assets to himself, he was fulfilling Salvatore’s instructions. Where a donor has capacity, the attorney is primarily informed by the donor’s instructions, and the attorney is not in breach of their obligations if they follow those instructions.
[50] In Richardson (Estate Trustee of) v. Mew, 2009 ONCA 403, 96 O.R. (3d) 65, at para. 49, this court referred to the following description of the prohibition against using a power of attorney for personal profit, citing Egli v. Egli, 2004 BCSC 529, 28 B.C.L.R. (4th) 375, at para. 82, aff’d 2005 BCCA 627, 262 D.L.R. (4th) 208:It is the attorney's duty to use the power only for the benefit of the donor and not for the attorney's own profit, benefit or advantage. The attorney can only use the power for his or her own benefit when it is done with the full knowledge and consent of the donor. [Emphasis added; citations omitted.] [51] In this case, as the trial judge found, Salvatore had full capacity and knowledge, and he consented to the impugned transfers. In fact, Salvatore instructed his attorney, Sam, to make the transfers.
[52] In these circumstances, despite being a fiduciary, Sam was entitled to use his powers as attorney to effect the transfers for his own benefit. . Palichuk v. Palichuk
In Palichuk v. Palichuk (Ont CA, 2023) the Court of Appeal cites the statutory criteria for incapacity for personal care and managing property from the Substitute Decisions Act:[48] The application judge identified the tests for determining capacity for property (SDA, s. 6), and for personal care (SDA, s. 45), as set out below:6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
...
45 A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. . B.L. v. Pytyck
In B.L. v. Pytyck (Ont CA, 2021) the Court of Appeal considered legal mental capacity in the context of deciding whether a party could consent or refuse to consent to treatment:[25] I see no such error by the Board. With respect, B.L.’s submissions overlook an important element of the legal test as articulated by the Supreme Court in Starson. As the Board pointed out in its reasons, at p. 13, in Starson the Supreme Court stated, at para. 79:While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition. Professor Weisstub comments on this requirement as follows…:Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations. As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision. [Emphasis added.] [26] Accordingly, the Starson test for capacity in respect of the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision includes a requirement to consider whether a person’s condition results in an inability to recognize that he or she is affected by its manifestations, thereby rendering the person unable to apply the relevant information and appreciate the consequences of his or her decision. This aspect of the legal test has been repeated and applied by this court in several cases: Giecewicz v. Hastings, 2007 ONCA 890, 288 D.L.R. (4th) 587, at paras. 18-21, leave to appeal refused, [2008] S.C.C.A. No. 97; D’Almeida v. Barron, 2010 ONCA 564, 103 O.R. (3d) 250, at paras. 24-26, leave to appeal to S.C.C. refused, (2011) 284 O.A.C. 400; Gajewski, at paras. 47-53; and Murray v. Alatishe, 2019 ONCA 596, at para. 20.
|
