Legal Capacity when Hospitalized 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 hospitalized, as it determines who has the authority to make decisions related to one's own medical care and aspects pertaining to estate planning (i.e., creating or updating one's own last will & testament). As such, it is important to not only establish legal capacity when someone is hospitalized, 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: Hospitalization, especially due to illness, injury, or severe pain, 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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It is important to note that disagreeing with a medical recommendation does not, by itself, mean that a person lacks capacity. If a person understands the consequences of refusing a treatment, even if it is life-saving, their decision must be respected.
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 the hospital, and the associated costs involved as a result of the added time that must be expended in furtherance thereof, whether its Calgary’s Foothills Medical Centre, Peter Lougheed Centre, Rockyview General Hospital, South Health Campus, Tom Baker Cancer Centre, Cochrane Community Health Centre, Airdrie Community Health Centre or other medical facility in metropolitan Calgary, Alberta, 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 the hospital will incur additional cost and expense as compared to comparable legal work on wills, trusts, personal directives and powers of attorney.
