How can I get the medical evidence needed for a committee application if the patient will not cooperate?

  • The patient’s family doctor can usually provide the proper medical evidence that the patient is not competent to handle his or herself or affairs
  • A second doctor can usually be found for the second affidavit
  • If the patient refuses to attend on a doctor, an application can be made to court to compel attendance

In Temoin v. Martin, the proposed patient was 87 years old.  He was re-writing his will, changing the division of his assets to leave his first family $8 million less than they got under the old will.  His daughter from the first family did not like this.  She wanted to apply to court to have him declared incompetent, and asked him to see two geriatric psychiatrists.  He refused, so she applied to court asking for an order to compel him to attend.

The judge refused to order that he attend on the doctors, and the Court of Appeal confirmed this.

A court does have the power to order that a person see a doctor for an assessment.  However, this is a power that will exercised cautiously.  When a person is declared incompetent, their Canadian Charter of Rights and Freedoms rights of liberty, autonomy and equality are affected.  There must be some evidence establishing that there is a serious question to be tried, both with respect to the proposed patient’s mental capacity and his or her need for protection.

In this case, there was no evidence that suggested that the proposed patient was personally at risk, or subject to abuse or neglect.  He was financially comfortable, living with family (including his wife of 47 years) and caregivers in his own home, and had retained appropriate experts to help him manage his business and financial interests.

Getting medical evidence of incompetency can be difficult, especially if the patient will not cooperate.  We can help.  Contact us.

Read the case:  Temoin v. Martin

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