Estate Planning

Mental Health and Capacity

By Hull & Hull LLP

‘Mental disorders’ (also referred to as ‘psychiatric disorders’) encompass everything from personality disorders (including paranoid disorders, obsessive compulsive disorder and schizophrenia), anxiety disorders, psychosis (including hallucinations and delusions) and mood disorders (including depressive disorders and bipolar disorders). Mental health practitioners use the criteria outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) to diagnose mental disorders. Incredibly, the DSM-IV lists two hundred and ninety-seven disorders. According to the 2002 Health Canada Report “A Report on Mental Illnesses in Canada”, one in five Canadians will experience a mental illness in their lifetime. The remaining 80%, of course, will be affected by an illness in a family member, friend or colleague. As reported in “Mental Illness in Canada" (produced by the group Citizens for Mental Health), nearly 1 million Canadians live with a ‘severe and persistent mental illness’. Mental illness is the second leading cause of hospital admissions among those 20-44 years of age and the World Health Organization estimates that by 2020, depression will be the leading cause of disability in developed countries such as ours.

There is no doubt that when one suffers from a mental disorder, there are often questions with regards to their capacity to make decisions on their own behalf, whether those are personal care choices or financial decisions. To further complicate matters, mental health is by no means a static entity. Special challenges are presented, for example, by a mental disorder characterized by ‘episodes’, such as bipolar disorder or schizophrenia. When a loved one attempts to step in to protect their family member, perhaps by attempting to make banking decisions (e.g. freezing a bank account where there is great evidence of poor insight and judgment), there is often a gap between good intentions and strict legal requirements. This is where a Continuing Power of Attorney document could be extraordinarily useful, when applied prudently.

For more information about mental health, please visit the Canadian Mental Health Association at http://www.cmha.ca/bins/index.asp .

Jennifer Hartman, Guest Blogger

Full post as published by Toronto Estate Law Blog on February 02, 2009 (boomark / email).