Legal Capacity when Elderly at Home in Calgary
Neufeld Legal | Calgary, Alberta wills and estate planning lawyer, advising clients in developing and implementing their personal succession plans.
Contact Neufeld Legal PC at 403-400-4092 or Chris@NeufeldLegal.com
In Alberta, legal capacity is a critical concept when you or a loved one is elderly and largely confined to one's home (or a seniors home or hospice) and consideration is given to addressing legal matters, including creating or updating one's own last will & testament, power of attorney, personal directive. As such, it is important to not only establish legal capacity when someone is elderly (or might otherwise have their present capacity challenged at a later date), but also to take appropriate steps to have a lasting record, given the prospect of scrutiny at a later date.
Key Principles re Legal Capacity
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The Presumption of Capacity
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You are presumed to be capable: In Alberta, every adult (18 years or older) is presumed to have the legal capacity to make their own decisions. This presumption holds true even if a person is hospitalized, unless there is a valid reason to believe otherwise.
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Capacity is decision-specific: Legal capacity is not a blanket status. A person may have the capacity to make some decisions but not others. For example, they might be able to understand and consent to a simple procedure but lack the capacity to make complex financial decisions.
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Temporary loss of capacity: Certain occurrences of illness, injury, or severe pain, especially when accompanied by hospitalization or medical treatment, can cause a temporary loss of capacity. This can be a short-term issue that resolves as the person recovers; nevertheless, how it is interpreted and addressed by a lawyer are important considerations.
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From a technical legal standpoint, capacity is defined as the ability to:
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Understand information: This includes understanding the facts related to a decision, such as a medical condition, the nature of a proposed treatment, and the available options.
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Appreciate the consequences: This means being able to understand the reasonably foreseeable risks and benefits of making a particular decision, or of not making one.
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Individual circumstances, in consultation with a knowledgeable lawyer, should provide an appropriate course of action to determine an individual's legal capacity, and where establishing capacity, how the establishment of legal capacity might be appropriately recorded for posterity, and designed to withstand legal scrutiny.
For more information about scheduling and attending to legal matters at a home, hospice or seniors home in metropolitan Calgary, and the associated costs involved as a result of the added time that must be expended in furtherance thereof, contact our law firm today at 403-400-4092 or Chris@NeufeldLegal.com to schedule an appointment.
* Please note that travel time and attending at someone's home, hospice or seniors home will incur additional cost and expense as compared to comparable legal work on wills, trusts, personal directives and powers of attorney.
