A Retrospective Opinion Defeats a Contemporaneous Opinion
In most cases, the common law has given more weight to evidence provided by the person that carries out the contemporaneous interaction (in other words, the live or in real-time meeting/evaluation before the decision is made) over retrospective capacity evidence (in other words, when an opinion is formed based on the likelihood of capacity at a particular point in the past, for a particular task, based on the documentary record – including clinical information).
The principle above makes sense because capacity is time specific, situation specific, and task specific. Therefore, the person present at the time the decision is made is in the best position to provide information and evidence related to that moment in time.
However, James v Belanger, 2023 ABKB 34 (“James v Belanger”), stands to say that if solicitors/service providers are not aware of biopsychosocial risk factors at the time a decision is made or a document is signed, a retrospective evaluation could provide valuable evidence to potentially invalidate a transaction.
Simply put, had the lawyer been aware of the information (outlined in the retrospective report) at the time the contemporaneous capacity was weighed by the lawyer, it is likely the lawyer would not have completed the transaction.
A Closer Look at James v Belanger
The primary issue before the court was: did Elsie Slywka (“Elsie”) lack capacity to transfer her property and create a joint tenancy with her common law partner?
The action was commenced by Elsie’s daughter, Ms. James, in her capacity as attorney for Elsie. Some of the material facts include:
- Elsie had children with her late husband. After his death, Elsie lived in a common law relationship with the defendant, Marcel Belanger (“Marcel”), since about 1988.
- Elsie drafted a Will in 2014 which left her entire estate to her children only and expressly excluded the Defendant as a beneficiary.
- In December 2016, Elsie had received a diagnosis of Dementia, Vascular or mixed.
- In March 2017, the Defendant instructed a solicitor to transfer the title of Elsie’s property into the joint tenancy between Elsie and the Defendant.
- The lawyer did not know about the dementia diagnosis.
- The lawyer did review an unsigned copy of Elsie’s 2014 Will, wherein the Defendant was expressly excluded as a beneficiary.
- The rationale provided to the lawyer for this change was that she did not view the property as part of her estate.
- In April 2017, the joint tenancy transfer was completed.
- There is no mention if the notes from the lawyer that drafted Elsie’s Will in 2014 corroborated Elsie’s rationale for the transfer.
- In 2020, Elsie’s Powers of Attorney were activated.
- Dr. Arlin Pachet (“Dr. Pachet”) provided the retrospective opinion on Elsie’s decision-making capacity at the time of the property transfer in 2017.
- Dr. Pachet retained around the time of the litigation and therefore because of Elsie’s cognitive decline, his contemporaneous interaction with Elsie was limited to get a sense of her values and beliefs, if possible.
“Based upon the documentation I have reviewed to date, it was apparent that [Elsie] most likely would not have demonstrated adequate understanding and appreciation of the nature and effect of the transfer dated April 12, 2017, let alone initiate and follow through with the transfer on her own accord?”
Dr. Arlin Pachet providing retrospective evidence in
James v Belanger
Outcome:
“Given the observations, medical history and reports, Dr. Pachet’s evidence and the fact that the transfer contradicted 33 years of express and implied evidence of Elsie’s intentions … [therefore she] lacked capacity to effect the transfer of the property to a joint tenancy.”
Key Takeaways!
- Deeply held beliefs often stay with people when other faculties have faded or failed, as referenced by Dr. Pachet.
- Retrospective opinions may strike the contemporaneous opinion if the contemporaneous did not have the benefit of material information that is likely to impair the ability to understand and appreciate aspects of the legal test – in this case, the lawyer did not know about the dementia.
- Retrospective analysis were confirmed to be reliable, even when there is no contemporaneous evaluation by the expert witness, so long as the expert has sufficient documentation to base the retrospective opinion on.
- Taking the time to canvass and document biopsychosocial risk factors with customers/clients/patients can protect the decision/transaction from future challenges.
If you have any questions about the sufficiency of the documentation for your retrospective evaluation, consider calling us to consult with Dr. Arlin Pachet.
