By Adam Asmar
Reviewing the Cormier V. Othen Case (2024 ONSC 4237), we will examine the topics of capacity assessment, the appointment of a litigation guardian, dealing with dementia and dementia’s impact on cognitive function.
Catherine Cormier and Carol Weir were in a car accident in 2017. In 2019, they brought forward a civil suit following the accident, and after 2 years of inaction on the case, in 2021, decided to try to reach a settlement.
In this case, Carol Weir, an 85 year old living with dementia, had her capacity to take financial decisions questioned, after being unable to remember the accident and what happened. At her examination for discovery, it was disclosed by her family doctor that since 2018, that she has lacked the ability to perform safely the activities of daily living, such as financial management, transportation, housekeeping, and food preparation.
Ms. Weir required caregiver assistance, and had no recollection of the events related to the accident. Her family doctor determined that she was unfit to participate in examination for discovery.
Based on this determination by Ms. Weir’s family doctor, the plaintiffs brought the motion before the associate judge for appointment of a litigation guardian.
A litigation guardian is a legal representative appointed by the court to act on behalf of a party, who is unable to conduct their own litigation, due to mental or physical disability.
After sending the family doctor’s report of Ms. Weir’s condition to other sources, her treating clinicians said that Ms. Weir’s condition was much better than her family doctor’s assessment.
An alternative assessment by a geriatric nurse concluded that Ms. Weir had “mild but progressive dementia.” When the judge was reviewing case laws to determine the validity of this description of dementia, she came across 2022 case, where the conditions of the client were described as “gradual onset” of dementia, but the decision was that “The patient has full capacity.”
Giving counsel the benefit of the doubt, the associate judge again adjourned the motion instead of dismissing it.
During the period of 2019-2021, Ms. Weir’s family doctor apparently neglected or refused to answer the lawyers’ requests for a medical report, addressing the issue raised by the associate judge.
The lawyers then considered the cost of obtaining a private mental capacity assessment to satisfy the court’s queries. Stalled by Ms. Weir’s family physician inaction and the cost of an assessment, Catherine Cormier and Carol Weir settled the suit.
Although the law puts the jurisdiction around the appointment of a litigation guardian under the purview of disability law, a diagnosis of dementia does not fall under disability law. The appointment of a litigation guardian only arises with a client whose mental disability impairs their decision-making ability. Because legal autonomy relates to basic human rights, it becomes a human rights issue, NOT a disability issue.
In the case of Ms. Weir, and in many people living with dementia, it is not as straightforward as you might think to determine the criterion of loss of capacity in terms of understanding legal proceedings, eventual settlement and ones rights.
In the case of Ms. Weir, it was determined that lack of memory about the accident, the impairment of her ability to manage finances or household duties, and similar findings of the clinicians, do not deprive a litigant of her autonomy to take advice from her lawyer and execute a settlement.
Her dementia might mean she will forget the advice the next day. But the lawyers can address this problem by memorializing instructions in writing.
In summary, while dementia can be debilitating, and cause loss of capacity as it progresses, depending on the state of the dementia’s progression, capacity can still be present, with accommodations made to the person with memory problems.
In this case, Ms. Weir was found to have full capacity to take financial decisions regarding her settlement, even with signs of dementia. Her memory problems were accommodated by having things written down when having symptoms of memory loss.
It was decided that she did not need a litigation guardian, and Catherine Cormier and Ms. Weir’s lawyers negotiated a settlement for court approval.
In GLA, we are completing capacity assessments. In addition, our providers are caring for people with dementia. We are now providing a large scale of rehabilitation services for seniors and people with dementia. Our main goal is to ease the burden on family caregivers and to ensure safety and optimal functionality of the elderly person. We use standardized assessment tools to determine how to approach the client’s cognitive difficulties.
Please visit our website at www.gla-rehab.com.