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STBX has been assessed and deemed to lack capacity

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  • STBX has been assessed and deemed to lack capacity

    STBX is deteriorating rapidly. He has had a formal capacity assessment and has been deemed unable to make financial decisions for himself. Next step for him would be having a court appointed trustee. We are into our 7th year of litigation with nothing settled. Wondering if anyone knows how this new wrinkle ( him being deemed unable to make financial decisions) will impact our litigation and outcome?

  • #2
    Well.... it could be bad for you (hate to say). My mother's best friend, who was quite wealthy, had to deal with court-appointed trustee for her husband who had Alzheimer disease. She had to go to court to get any money. I recall her having to go to court to get money for birthday presents for her grandchildren. She had to present a budget to trustee, along with bills from previous month expenses so she could get taxi money to go and visit her husband in the institution. It was pitiful really. Only relief she received was when he passed away.

    Hope you have some court orders in place.

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    • #3
      Except we’re separated and I’m owed settlement monies. I wonder if this means I’ll get everything i’m Asking for as he can no longer instruct his lawyer. The good news is that if he had a trustee I don’t have to worry about chasing my money or forcing the sale of his house or assets. The trustee will go to jail if they don’t pay the children and I the money we’re owed.

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      • #4
        Do you know if the Trustee will be a family member, or a professional such as an Accountant or a Trust Company?

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        • #5
          Don’t know yet. Hope his slime ball lawyer doesn’t make himself the trustee and help himself to the money.

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          • #6
            I only know one person who was declared to lack capacity. PGT took over and those guys played hardball. It did not help my friend at all when her ex was declared to lack capacity, quite the opposite in fact.

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            • #7
              Originally posted by Stillbreathing View Post
              STBX is deteriorating rapidly. He has had a formal capacity assessment and has been deemed unable to make financial decisions for himself. Next step for him would be having a court appointed trustee. We are into our 7th year of litigation with nothing settled. Wondering if anyone knows how this new wrinkle ( him being deemed unable to make financial decisions) will impact our litigation and outcome?
              Under the rules the OPGT can be appointed as a "special party" per the family law rules:

              “special party” means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection, adoption or child support case; (“partie spéciale”)
              The court than can order this special party (OPGT) as the representative for the person under Rule 4(2) of the Family Law Rules. Basically giving them full power over the litigation process.

              PRIVATE REPRESENTATION OF SPECIAL PARTY

              (2) The court may authorize a person to represent a special party if the person is,

              (a) appropriate for the task; and

              (b) willing to act as representative. O. Reg. 114/99, r. 4 (2).
              Then they have to qualify under section 6 of the SDA:

              A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 6.
              This case covers it all and the case law for "special parties" in a family law matter: https://www.canlii.org/en/on/onsc/do...7onsc4345.html

              Its not easy to get them assigned to a case and take over. (See attached case law.)

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              • #8
                Thanks Tayken. You have a talent for uncovering pertinent cases. If anyone has a challenging legal question, sure enough you can find a case to address it.
                Thanks again.

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