Estate, Legal & Financial Capacity
Independent, decision-specific capacity opinions
Not every capacity assessment involves Guardianship or Trusteeship. Capacity may need to be considered when a person is making, changing or revoking an important legal, estate-planning or financial arrangement.
These assessments are decision-specific. The assessment question is defined before the appointment so the evaluation addresses the particular decision the individual is being asked to make.
Testamentary Capacity
A testamentary capacity assessment may be requested when there are concerns about whether a person is able to provide valid estate-planning instructions.
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Cognitive decline or dementia
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Significant changes to an estate plan
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Family conflict
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Unusual beneficiary changes
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Concern regarding influence from others
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Anticipated litigation
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A desire to document capacity contemporaneously with estate planning
Where legal documents are being prepared, involvement of the client’s lawyer is strongly encouraged so the legal question and instructions can be clearly defined.
Enduring Power of Attorney
Assessment may be requested when there is uncertainty about whether a person has the capacity required to make, change or revoke an Enduring Power of Attorney, or to understand the authority being granted and the consequences of the proposed arrangement.
Questions about when an EPOA comes into effect depend on the wording of the particular document and the applicable legal requirements.
Personal Directives
Assessment may be requested in relation to making, changing or revoking a Personal Directive, or in relation to enactment or regained capacity where the applicable statutory requirements permit the assessor’s participation.
Because enactment requirements depend on the Personal Directive and Alberta legislation, the document should be reviewed before the assessment process is confirmed.
Significant Financial Decisions
Assessment may involve:
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Substantial gifts
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Transfer of significant assets
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Settlements
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Major financial commitments
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Changes with significant estate consequences
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Other complex financial decisions
The legal test depends on the decision involved. Where the matter has legal implications, the referral question should ideally be defined with counsel.
What the Assessment May Include
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Direct interview with the individual
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Review of the proposed decision
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Relevant health and cognitive history
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Functional assessment
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Cognitive screening where clinically appropriate
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Review of existing legal documents
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Collateral information
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Review of relevant records
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Structured decision-making assessment
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Consideration of vulnerability or susceptibility to influence
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Written independent opinion
Important
A capacity assessment provides an independent professional opinion about a person’s decision-making capacity in relation to the specific question assessed. It does not determine the legal validity of a will, Enduring Power of Attorney, Personal Directive, transaction or other legal document, and it is not legal advice. No single diagnosis, cognitive screening score or test result determines capacity.