Assessing Capacity: Insights and Analysis from Medical & Legal Experts

Mallory Hendry  00:00:00

Hello everyone, and thanks for joining us. I'm Mallory Hendry, Content Specialist manager with Canadian Lawyer, and I'm pleased to introduce the latest webinar from Hull and Hull LLP and Whaley Estate Litigation Partners assessing capacity insights and analysis from medical and legal experts. Our hosts today are joined by a fantastic panel of medical experts, and I'm looking forward to what will surely be an engaging and insightful discussion. Just a note throughout the presentation, links to supplemental information will be dropped into the chat, so keep an eye out for those. I'll turn things over to Ian now to get things started.

Ian Hull  00:00:42

Thanks so much. And welcome everyone so very excited about today's 90 minute session. We are going to and we thoughtfully made this title. We're going to be talking about assessing capacity, but we're going to be able to get insights from the medical and legal community, and analysis from from all of us on the panel. We are so thrilled to have an internationally renowned panel with with Kim's going to go through the introductions, and then we also have, of course, my partner, Suzana Popovic-Montag, Kim, Whaley and Brian Gilmartin, again, they're all internationally renowned. And then you got me. So we're going to do our best to hold this thing together, and we're going to have a very interactive discussion with the legal community and the medical community coming together to talk about capacity, because, as I always tell people, I went to law school because I can't do math, doctors have a very different perspective. They need to intersect with us in our day to day practice with capacity. So we're so excited to learn and develop that skill for our clients. So Kim over to you to do some introductions.

Kimberly Whaley  00:01:50

Thanks, Ian, so we have a great panel of medical experts with us today, starting with Dr Ken Schulman, who is local at Sunnybrook Health Sciences. He's with the Sunnybrook Research Institute, an associate scientist and a psychiatrist. Many of you will know Dr Schulman's articles on test metric capacity and vulnerability to undue influence. He recently set up guidelines in medical and legal journals for AI conducted scopes and looking at judicial decisions involving will challenges, which is really great addition, we also have Professor Robin Jacoby, who is professor emeritus of old age Psychiatry at the University of Oxford for Many years now, Dr Jacoby, or Professor Jacoby, has developed an interest in legal mental capacity issues in older persons, and has published widely on testamentary capacity and undue influence, both for lawyers and for doctors. His lectures and his seminars have been widely praised. And finally, we have a doc professor, sorry, adjunct professor, Professor Carmelle Peisah, who's at the University of South Wales and a clinical professor of Sydney University and president and founder of capacity Australia. Dr Pesais a medical practitioner, an old age psychiatrist and family therapist. She's widely published in capacity, and is a co author of the E text, capacity and the law. And in 2025 the nominee for Australian of the so you can see that this is a very esteemed panel in the materials today. Dr Pesach along three articles published by she and her colleagues. They are linked to them is in the chat, and they cover a lot of what we'll be discussing today. So I recommend them highly to you, and back over to you Ian. 

Ian Hull  00:03:59

Okay, thanks, Kim, so I think you're going to leave the seminar be able to tell people you actually you actually heard these people talk. We have three of the most profoundly dialed in capacity experts in the medical community in the world. So let's start building on that and getting some real knowledge. All right, so Kim, let's start with the legal sense perspective, just because it sort of frames it for us to really approach the medical community, to give some of their observations. Can you give us just a few of the categories for capacity testing that we need to consider and just a little bit about them, so that we can get a bit of a running start on where we're going to go and frame today's seminar? 

Kimberly Whaley  00:04:42

Sure, yeah, of course. So contextually, given our demographics and our aging population, our legal dealings with adults in vulnerable circumstances will necessarily involve the consideration of decisional capacity. It's important, therefore, that we consider the capacity. That are most often encountered by us and for which we seek expert medical opinion on both retrospectively and contemporaneously, lawyers often need insight and guidance and an understanding of the illnesses and timelines of an individual's capacity profile relevant to the decision made or undertaken and the relevant time, obviously, is imperative. There is, of course, we all know this, a legal presumption of capacity, but there are also legal and ethical rules that a lawyer must satisfy, including the obligation to ensure clients have capacity to both retain them and to give instructions and to execute and give instructions with respect to the documents necessary to carry out the subject matter of the retainer. I just want to just contextually to remind everybody it's not the case that all older adults have capacity challenges. Yet we can't ignore that with longevity comes the potential for a natural increase in medical issues, which may be prevalent, affecting certain abilities, and an increased susceptibility to vulnerability and influences or pressures or or coercion. Navigating capacity issues is tremendously complex. I don't want you to get the impression today that the ease of the conversation makes it any less complex. Very, very complex issues. Capacity is determined upon considerations of law and fact and applying the available evidence to the applicable criteria for determining decisional capacity. In every instance, there's no single legal definition of capacity or incapacity. A person is not globally capable or incapable. Rather, capacity is determined uniquely on a case by case basis relative to the decision in the moment. Importantly, capacity can fluctuate, and our laws accommodate for that. Capacity is not specific or static. It's decision specific, it's time specific, it's situation specific, and it's determined on evaluating certain capacities are set out in legislation, just to give you a quick example. For example, in the in Ontario, the substitute decisions act deals with capacity to manage property and powers of attorney and guardianship. And for example, in Alberta, they have similar legislation. It's called the Alpha professional directives out. But then other criteria is determined at common law by those judge based decisions that have been developing over centuries. For example, in the case of testamentary capacity, capacity to make or revoke a will, the common law test based on banks and Goodfellow. And we know that capacity assessments are completed by different people with different qualifications, both retrospectively and contemporaneously, depending on the decision contemplated. So for example, you have like our panel today, expert capacity assessors, doctors within different specializations, including geriatricians, psychiatrists, qualified assessors trained in Ontario in the assessment of capacity include nurses and psychologists and social workers and occupational therapists and, of course, importantly, the lawyer. The relevant capacity criteria in the estates and trust context in the overview includes the determination of an individual's ability to understand the information relevant to the decision and appreciate the reasonable, foreseeable consequences of a decision or a lack of decision, and in terms of the more specific capacities that we're commonly concerned with, these are capacity to manage property, capacity to grant a Power of Attorney for property or for personal care, to to to instruct counsel, to make a trust, to make a will, to make a codicil, to make a gift, to enter into a contract, to enter into a real estate transaction, to litigate capacity, to marry, to separate, divorce and To reconcile, just to name a few. So that's more or less what we're talking about today. And back to you. 

Ian Hull  00:09:26

Hello, all right, I've got my camera focused on Susanna, because we're going to go to you next, and that's really helpful. Kim, thank you. Just as lawyers, we need to frame this as well as to where are we going to do with this evidence? Where is it going to go in case we need to use it? So Susanna, what are some of the sources of evidence that we use, use at a trial to sort of support the lawyers efforts to test capacity and where we can expect that this might land in case we are going down this dark road. 

Suzana Popovic-Montag  00:09:59

So. That's a really good question. Ian and I would say that there are really three main sources of evidence that lawyers look to when someone's capacity is being challenged. There's the role of the drafting lawyer and their notes and files, the use of medical records, and, of course, the importance of lay witnesses. These are the main categories of evidence from which we try to cobble together and put together our narrative when it comes to dealing with someone's capacity or incapacity at the relevant times and in respect of the relevant decision or task that's being undertaken. So if we break these down each a little bit, we can start with the drafting lawyers, and of course, they play a pivotal role in assessing and documenting a client's capacity at the time of preparing the legal documents, such as wills and powers of attorney, their contemporaneous notes and observations serve as crucial evidence in court, providing insights into a client's mental state, their intentions and understanding and decision making abilities. Of course, the lawyers assessment of capacity is going to be informed by the relevant legal tests, some of which Kim alluded to earlier, and for the most part, they're really going to require that the client know and understand the nature and effect of the transaction. The second type of evidence that we use and tend to rely upon at trial is, of course, the medical records, and these records provide objective evidence of a client's mental and physical health and cognitive abilities, which can be instrumental in assessing capacity. The records can include diagnoses, treatment plans and evaluations by healthcare professionals, which offer a clinical perspective on someone's cognitive abilities. And in many cases, these kinds of records are very important to the court and critical in terms of coming up with a finding of capacity or incapacity. And so as a strategy, of course, when we're preparing for trial, looking to build our case as strong as possible, we'll want to obtain comprehensive medical records so that we've got any relevant assessments that are conducted close to the time of the transaction that is being challenged, and perhaps even engaging an expert to help us review the records and understand what they're providing for so that we can then assist the court with an explanation. And then finally, of course, we have the witness testimony. We've got lay witnesses like family members, friends and professionals, who can provide first hand accounts of the day to day interactions of people and their behavior, their decision making, and also may even speak to how that may have changed over the years, their testimony can offer really important context and either corroborate or refute other evidence, including the lawyers evidence or even the medical records. And of course, and most importantly, we have our expert witnesses who, unlike other witnesses, can actually provide their opinions on an individual's capacity based on their expertise and their review of the evidence. So what we really have then, is this, you know, multifaceted approach to evidence, where we're looking at these three different categories in order to be able to best demonstrate that the client either did or did not have capacity at the relevant times.  

Ian Hull  00:13:08

Awesome. Thank you. Susanna, okay. Brian, last framing before we unleash the docs, what are some of the pitfalls, or some of the solutions? I always look for the positive half full that a lawyer can fall into when testing capacity for a client. 

Brian Gilmartin  00:13:28

Yeah, thanks, Ian, so at first instance, we all get to appreciate that it's the duty of the lawyer to probe and verify a client's capacity to do the particular task that's being sought or dealt with. And so when we think about making a will, recall Kim mentioned briefly the common law, you know, criteria and banks and Goodfellow that a client must have in order to be capable of making a will. But the approach to or the approach taken to satisfy that obligation on the part of the lawyers is really important, and it can't be taken lightly, so when we think about the common pitfalls. Of course, there are many, and we could probably spend the day going through them, but two primarily stand out, and those are improper note taking on the part of the lawyer and an inadequate investigation on a part of the lawyer with respect to probing and verifying capacity. Now, how you elicit information from the client is immensely important. You know, at first instance, how are you asking the questions? Are they leading questions, or are they open ended? Are you leading the client to a desired answer that could very well mask issues with respect to cognition and capacity? Are you framing things in a way that perhaps cater to their good social graces, like that's a problem, right? Or are you allowing the client to engage in a conversation and provide detailed and fulsome answers to the questions asked and more we go, go one step further Once that information is provided. How are. Confirming that, what that the source of that information? You know, if we think, for example, with respect to assets, you know, we've all been in situations where we've reviewed lawyers, files and notes and records, with respect to a meeting that says, you know, under the assets list, house and maybe it has an address, is that it is, does the question. Do the questions stop there, when, in reality, it's an excellent jumping off point to satisfy yourself on on the on an issue of capacity, where is the house? How long have you owned the house? What did you pay for it? Do you own it yourself or with someone else? Do you have a mortgage? How much is the mortgage? How do you pay for the mortgage, paying it from what account, how much are the payments? And you may very well have a client who is just, you know, knocking these questions off, and it's it's no trouble. But you may also be faced with a situation where you have a client saying, oh, you know, I don't know, or I don't remember, I'm not quite sure. And next thing you know, by going that extra step, you've identified all these red flags that you're going to have to deal with in the course of trying to address the issues with the client. And so when we say, probe and verify, what does that mean? How do we do it? Presumably, it varies from client to client, right? And it's based upon the particular circumstances. And so it follows that a rigid check the box approach, though checklists are very helpful, is likely not sufficient. You know, I think you got to, you know, peel the onion, so to speak, on a case by case basis, and really get to the root of the information being provided such that you're satisfied at the end of the day that you, in fact, have a capable, capable client. Now, when we talk about insufficient note taking, unfortunately, it's often the case that when you look at a lawyer's file, the notes and records from the meeting with the client, let's say, with respect to making a will, oftentimes it makes no reference to the banks and good fellow criteria at all. You know, you'll see, you know the chicken scratch notes saying house, savings account, wife, three kids, all to wife, if survives, if not, to kids, or some iteration of that. And nothing about this practice confirms that capacity was sufficiently probed and verified at all. Nothing about this practice confirms the source of the information provided. And so it really leaves a bit of a gaping hole. And as Susanna mentioned in the context of litigation, that evidence is immensely important. And so all that to say is, again, it's the lawyer's responsibility. It can't be taken lightly. Taking the necessary time is critical. Maybe it doesn't all get done in one meeting, especially if those concerns have been identified. Open ended questions absolutely have to be asked. Inquiries need about any medical conditions that could contribute to cognitive impairment, and a memo or, you know, well documented, precise notes should follow that actually accurately captures all of the information provided along with the lawyers observations on the issue of capacity. And that's that. Ian, back to you. 

Ian Hull  00:18:15

Thanks so much, Brian. Okay, we've framed the parameters we want to try to talk about today from a legal perspective. Now we're going to literally as, no doubt, Dr Jacoby is well aware of the phrase Unleash the Hounds. We're going to Unleash the Hounds. We're going to get some medical perspective here, starting with Dr Ken Schulman. And Ken, if I could impose on you to just sort of set the stage, we're going to hear from all of the guests here today, but just set the stage here in terms of your own perspective in the context of what is really the role that the medical community plays in the process of testing capacity in the various forms.

Dr. Ken Shulman  00:18:58

Well, thanks, Ian, well, first of all, let me say that we've heard a really excellent introduction to this whole subject from our legal colleagues. And I don't have really a lot more to add to that. As far as the role of a medical community, I think we need to re emphasize the fact that, particularly in the area of estate litigation and estate trusts. This is a legal determination right that is made by the lawyers, first and foremost when they meet with clients and ultimately by the courts. So it really means that the role of the physician or the medical community is limited in this regard, and that's something that many doctors have to get used to. We're not used to having limited roles, you know? We we are used to calling the shots. The buck stops with the doc. That's not the case in estate litigation, and it's not the case in court. So doctors need a different mindset. And we're guided, of course, you've heard about the banks and Goodfellow criteria. I have to say that my interaction, I mean, I think the bottom line is that we're talking about mental capacity and and the legal determination of mental capacity, but it involves cognitive functions. It involves psychiatric that's the medical community can help lawyers and the courts make the best determination by understanding what those issues are and how they might impact all the legal tests. Right? So 

Dr. Ken Shulman  00:20:51

that's workable not to make a decision itself. It's collaboration. I have to say that a lot of cultural differences between technical subculture and

Dr. Ken Shulman  00:21:10

capacity over the years, I've raised my eyebrows. This test was stood by Justice Coburn in England in 1870 For God's sake, that's more than 150 years ago, and it's still the leading case. There aren't too many examples in the world of medicine where in 1870 worldview is still extant today, in 2025 right? So just coincidentally, a few years ago, myself, Ian, number of our colleagues, including a judge in Ontario, tried to tweak the banks and Goodfellow criteria and make it a little bit more modern and up to date, instead of the way things were in the 19th century in the United Kingdom. So that's just a little aside. Obviously, when there's a concern, and only when there's a concern do doctors get involved. And the question of which doctors, and often they are treating clinicians that get involved, sometimes they are so called medical experts. I think it's important to state at the outset, and I'm interested in what my esteemed colleagues have to say about the situation in England and in Australia, but in Canada, medical training is very poor with respect to teaching and having experience with capacity assessment. Most doctors know nothing about capacity. So when you're asking doctors to help sort out whether somebody is capable or not, you better have that in mind, and you need to direct doctors as to what the legal test is if you're asking them actually to opine on that. Because what I've seen, and this is a big concern, from general practitioners and even other specialists, who are asked by lawyers to back up their opinion that their client has capacity, they'll get a letter from the doctor, and the typical letter is a two sentence, I know Mrs. So and so she is capable of making legal and financial decisions. Yours sincerely, right now, you know what that is worth, that piece of paper, and it's important that doctors understand not to put themselves in the embarrassing position of writing opinions or comments that are not helpful to the court and for which they are going to get massacred on cross examination by the likes of Kim, Brian Ian and Susanna, so we've written a paper Sarah Mitchell and I in Canadian family physician for next month, telling doctors to beware of that now. 

Kimberly Whaley  00:23:54

So it's just to add Dr Shulman lawyers shouldn't be asking family doctors to do that either. 

Dr. Ken Shulman  00:24:01

That's correct. I think, I think lawyers have a responsibility not to put doctors in that position. They're they're not asking the right question when they get a letter like that. And I've been involved in many cases where the lawyers justify the fact that they considered the person capable because they got a note from the doctor that said they were capable. And again, I'm eager to hear from Carmel and Robin about their experience in that regard. And let's also be clear, many doctors, even family physicians, who know their patients well, will often miss significant cognitive impairment. And this applies to lawyers as well. Unless you probe cognition very directly and specifically, it's very easy to miss significant cognitive impairment. People with dementia can sometimes maintain their social graces, and if they're engaged in pleasantries, and you don't probe and stop and say, well, just a second, do you actually know what day of the week it is? You know? Do you Do you know? Do you know? What your assets are worth, you would be shocked. I have to tell you, just by coincidence is a true story. This week, I saw a VIP in my office who's been seen by other specialists and other doctors, including their family physician, for many years for chronic complaints that have never been resolved, somatic complaints, anxiety complaints, treatment has failed, but this individual actively resisted testing of cognition anytime a doctor suggested that, and so nobody had tested them, and he was being treated for various medical conditions. I saw him for a second opinion this week, and with a little bit of persuasion, shall we say, I got him to complete a Montreal cognitive assessment, which was a mocha. Nobody had raised concerns about this man's cognition. What did he score on the mocha? 19 out of 30, very significant impairment, zero out of five on delayed recall couldn't do a trails B test, which is a test of executive brain function. The message is, unless you probe it's easy to miss significant impairment. So I think those are sort of my thoughts about the role of the medical community, and I'll hand it over to my colleagues to tell you about their experience from an international perspective. 

Ian Hull  00:26:30

Thanks so much, Ken. Great start. We'll go to Carmel. If you could turn to you. I have the privilege of having been to Australia once my daughter lives in Melbourne. And what you know, I learned very quickly that they have a very different perspective in your country about pubs, which I really learned to enjoy. But pubs in Australia are much different. They are in Canada, and I got to know them very well this February. But let's have your perspective. I'm across so many Cs and so far away about some of the things that Ken's talking about and some of your observations in regard to capacity and the role of the medical community. Thank you. 

Professor Carmelle Peisah  00:27:13

Let's see, Ian, that your perspective of Australia is based on your analysis of our pub scene. Firstly, I'd like correct, like, firstly, Kim and Brian, you're an your five minute pricey. Of what's involved here is kind of what I teach doctors, and been teaching 15 years doctors to raise money for my charity, capacity, Australia. I charge doctors $900 over five six hours to teach. And what you both just said in five minutes each. So thank you for taking away my whole role that was so captured. The next thing I'm going to do, rather than, which is what I don't do in court, I'm I am not going to answer the question what Ken said straight away. I just wanted to go back on some of the things you said to expand, actually, to reiterate, firstly, with regards to why contemporary contemporaneous Note taking is so important, is that if you presume capacity, or you miss lack of capacity, and you don't do good contemporaneous note taking. What happens for us as as the expert, is when we're presented with the evidence, and you have to rely the recent case of involved with you have to rely on the lawyer saying, I usual practice, I always check whether the person has capacity. It's all the contemporaneous notes that are taken. So what I'm specifically saying is, if a person saying has early dementia, loss with the preservation of social graces, or indeed, if they've actually got significant it's not until you actually go into the note taking, and not just the chicken scratchings or sometimes chicken droppings, or indeed no scratchings involved, where actually the person did have capacity, and you'd otherwise presume that they didn't based on so I can't divulge too much of the case that I'm involved with which the person did have moderately significant dementia. There was no chicken scratchings at all, and all I got was the lawyer did usual practice, and that's no evidence to prove otherwise, other than the fact that I knew the person had significant loss of capacity. So it's so important that you do do those contemporaneous note taking. The next thing is medical documentation and doctors reports. I guess it's further to what Ken was saying about the ability to know what a good report is, and rather than a doctor's statement that I know what I'm talking about, and yes, I am capable of writing a report, you can't assume because the doctor says they're an expert. Or says they're capable of writing a report, that they can indeed write a report. And I think it's really important that you are able to distinguish between a decent doctor's report or not. And in fact, as Kent was saying, we have, I used to put in my reports this standard 12 references that said that GPS will miss dementia. So just because a GP says the person doesn't have dementia doesn't mean they don't have dementia, because unless you're actually probed, so the GP can be fooled by this superficial this preservation of graces, as much as a lawyer or anyone can be fooled, and similarly, even geriatricians. So I've recently seen some documentation from geriatricians who are experts, as we are, in old age diseases, but they might be focused on the person's fall or pressure areas or whatever, and they may not actually have done a comprehensive cognitive assessment. So just be able to really ascertain what a good report, and be very careful about doctors who assume, who say they're experts, that's probably what all I have to say. 

Ian Hull  00:31:13

Thank you so so much. That's great. Over to you, Robin, if you wouldn't mind giving us the British perspective. 

Professor Robin Jacoby  00:31:22

Well, thank you very much. I agree with everything that's been said so far, certainly, except there's one thing that possibly about Ken Shulman. When he said which doctors, I wasn't sure whether he meant the relative into the interrogative pronoun or whether he meant witch doctors. However, I think he meant the interrogative pronoun. Yeah, there was one thing that was said that medical evidence is objective, the hospital notes or the medical notes are objective. I'd like just to raise one possible red flag on that, in that, in my experience, doctors can get lazy. And I'll give you an example whereby a potential testator had been admitted several years before to hospital, and the had received by a consultant geriatrician who'd done a reasonable assessment and came to the provisional diagnosis of cerebrovascular dementia. And because it was a consultant, had written that over the years, this simply got repeated, and in the end, it turned out not to be cerebrovascular dementia, it was some other form of dementia. So one has to be a bit wary of, a little bit wary of these medical notes. However, I think it is the job of the medical expert to make sure that he or she is not necessarily fooled by the notes. As far as lawyers, most, most of the lawyers who draw up wills in in in the UK are we call them solicitors, they're qualified lawyers, but they're not barristers, but now we have professional will writers. I don't know if that's the case in Canada, and they've become a separate profession, but they're all subject to the same caveats and the same difficulties that my two colleagues have described. And if I could just say one thing about it, it's sometimes seen by the potential to state testator as insulting if a lawyer wants to ask questions probing about cognitive impairment, all the more so if they've known the client for a number of years. And my recommendation to lawyers is to say a bit like I would say to a prospective testator myself. Anyway, look, I want to ask you some questions, which may seem embarrassing, but I think it's terribly important. And I tell you why it's terribly important, because if the will I'm going to draft for you is challenged, the the only people who are going to benefit from that are lawyers and doctors, and they're going to take 1000s out of the estate. So it's worth enduring what may seem to be a little bit of a humiliation, and I think on the whole, that goes down reasonably well. One. Lawyer who wanted me to assess a patient, tried that very hard. Tried very hard. The client wouldn't have anything to do with it. She wouldn't be seen by me. And okay, the will was challenged, and tough luck on her. She didn't respond to this. Then, obviously contemporaneous will draft, let me call them, will draft as notes are terribly important, and they can be unbelievably shocking. In the case of key V key, which is a well known case now in which I gave evidence, the solicitor wrote his attendance notes on the back of a used envelope. Not surprisingly, the judge criticized him very, very strongly, and he, of course, was sued for that. So I do strongly underline the need for will draft us to write very good notes. And one of the things that I think is terribly important are these so called red flags. Now red flags were categorized and published in a paper of which I was a co author. Were you a co author on the red flags paper, Carmel’s red flag, I'm about to say that if you had shut up Carmel, I would have to say they see in here, yes, that that Carmel was the ABS was the lead, she, she was the, the main person in this particular paper. And she, yes, she, she produced.

Dr. Ken Shulman  00:36:56

That was red flag influence, though, yeah, I talked about undue influence. 

Professor Robin Jacoby  00:37:01

Well, I was about to say that this paper was about red flags for undue influence. My one I don't know whether it's a disagreement, but I think these red flags should be red flags, not just for undue influence, but for all will drafters, and if any of these red flags waves itself while you are drafting a will. I think that an expert opinion should be sought on that person's mental capacity. And any will drafter who does that, I think should not run into into trouble. And perhaps I've spoken long enough,

Dr. Ken Shulman  00:37:40

but it might be worth mentioning what those red flags are. In fact, well,

Professor Robin Jacoby  00:37:44

that would be there about 12 of them. And no, no, you, as you grab me, you've been jolly. Well said

Professor Carmelle Peisah  00:37:53

I was trying to be so well behaved. But it makes it more spicy if I'm rude. I adore and revere this man. So everyone, the context of my bashing him is in the face of great reverence for him. What are they? Daniel, testing me? Yes, quite so the best way to remember it, I think, is if you look at individual psychological risk factors for the person like so mental state, I mean, like mental disorder, like mental illness, but then also cognition impairment, so history of mental illness, cognitive impairment, say, substance abuse, even personality dysfunction. So you've got these individual factors. Then there's sort of psychosocial situations like dependence, like dependence because you're frail and perhaps get in your home and relying on a son or a daughter to do everything for you. So there's dependence. But as you bereavement, I've thought of with cavers, key versus key family conflicts, a big one, and one of the papers that I sent you prodigal sons and black sheep, I think I've sent you that one, that one's about family conflict. Conflict is another risk factor bereavement. So there's individual psychosocial, if I've forgotten any individual psychosocial anyway, if then there's legal risk factors. And I often, when I write a report. I'll present them according to those three categories, mainly, so I don't forget. Then there's legal risk factors. So if the lawyer, if a client comes to you that you've never met before, if the client's got a lawn mower, as in, not a thing, the man that mows the lawn, and he brings the client along to you, and you're his lawyer, that's a risk factor, because it's not your usual client. If there are changing will making pattern, if there are other documents signed off, and what people do is they do a whole raft of things. And in fact, in this family conflict in dementia paper, we talk about this, that other documents are signed at the. Same time. So you do a power of attorney and will, you might transfer a house. So it all happens at the time. That's a risk factor for undue influence, not known to the lawyer. Anything else? Oh, if it's another one, is handmade, written by the son or the daughter. Someone comes along and says, Here's what my dad wanted. You know, the father a hand written will, and you're not quite sure who's written it or who gave the actual instructions. Any have I missed? Any?

Dr. Ken Shulman  00:40:31

Well, I think, I think those are all very important. I would keep it even more simple than that about red flags or concerns that lawyers should have. I think when there's a significant change, which you said in the will making pattern where there's a significant change from a prior will, a lawyer has a responsibility to ensure that they have probed that testators understanding of the previous will and the rationale and appreciation of The changes in the will. That's a very common problem where people come they're making a big change. They treated children equally before now, everything to one child. It's remarkable to me that lawyers would write a new will without probing the fact that they're aware that there was a previous will that treated children equally, and now a different will. So that's an important, that's a very important. 

Professor Carmelle Peisah  00:41:26

So much so that that's what in Ken's We also sent you Ken's retrospective paper, but the contemporary is the time for a change. We wrote that you were talking about the one we wrote with Ian and justice Myers. I think both of those, we've redefined the criteria, and in that one of the criteria is explanation for a rationale, rationale for a change in will making pattern. That's one of our criteria. So much so that in my reports, I annex this paper and the other paper to my report, and I use those criteria. So I use beds.

Dr. Ken Shulman  00:42:04

I think that's a very common, important red flag. They've treated children equally all the years. Now there's a change that is a big red flag. It needs to be addressed. So, you know, the other thing that you've talked about death bed wills. When somebody calls you into the hospital and they're dying. That is a suspicious circumstance. And most of the time they're delirious when they're when they're doing that.

Professor Carmelle Peisah  00:42:28

You brought that dying to say that. So can I just say one thing if we do nothing else? Can you keep at lawyers? Can you keep out of hospitals in general, but intensive care units, hospitals near nursing homes near, I mean, there's not, not you can't really presume. You could probably presume, like the the presumption of capacity is rebutted in a nursing home and it's rebutted in hospital because of the issue of the high prevalence of dementia and also the high prevalence of delirium. And what you've got to understand about delirium are the two sorts. There's the obvious one, where you're tossing and turning. I don't know if any of you are old enough to remember when Tarzan got bitten by a snake and he couldn't tell the difference between Jane and the monkey. You know, who's tossing and turning. That's delirium, right? That's acute medical illness. And then Tarzan gets better from the delirium, because Jane sucks out the poison from his hand and he gets better. That's delirium. That's what most people get in hospital. But that's obvious. Tarzan had obvious delirium. But what we call hypoactive delirium is just the quietness. It just almost look and it's remember, the prevalence. I think it's prevalent as hyperactive deliver it just looks like the person's just a bit quieter and maybe a bit even depressed. And doctors miss that yet alone lawyers coming in to write their will. So that's okay.

Professor Robin Jacoby  00:43:54

I don't know what it's like in Canada or Australia, but in Britain now, nurses are forbidden in hospital to witness wills that are made, deathbed wills to made in hospital. And so our resident, or so called resident or junior doctors, are forbidden to do so, so that the only, the only people who can witness deathbed wills in hospitals. This is a rule made by hospitals, not a law, but it's a sensible rule. The only people who can witness wills in hospital are qualified internists, geriatricians or or psychiatrists 

Kimberly Whaley  00:44:33

playing devil's advocate, Dr PESA, I'm in the hospital. I know I'm dying. I didn't do a will. I didn't pre plan totally to call my lawyer and he say, like, get here right now. I need a will. But then, 

Professor Carmelle Peisah 00:44:48

if you're involved, if you're involved, the solicitor, I'm cool with that. And that's and in fact, again, another paper. 

Kimberly Whaley  00:44:54

So, no, no, that's just me. It's the patients published, lawyer, 

Professor Carmelle Peisah  00:44:57

doctors in the world on this. I can't help but so quite. Writing all the time, and I've got so much hubris you cannot imagine, but we have written, Ben Lipson, who was an expert on delirium at the time, wrote a beautiful paper with us on was it death bed wills? And there's also a delirium will where he actually gave both sides. He gave both examples, an example where, yes, the person did have capacity. I'm just talking about keeping your eyes wide open and being alert and making sure. So please, I actually, I totally agree with you. It's just that it's often not in the hands of Kim Whaley. 

Kimberly Whaley  00:45:34

It's not it will never be in the hands of Kim Whaley, because Kim Whaley won't draft Kim Whaley only. Ian, I have a question about, you know, we've talked a lot about lawyers notes, and the doctors have obviously great experience in reviewing these lawyers notes, and have told us how perilous they are. But there's no excuse these days, with the relatively low cost of of AI note taking. We should we talk a bit about that? And then, and then, Ian, you know, when we get those solicitors notes and we, we just, we love them. When they say there's no, there's no real notes of what the client instructed, but they just say, client has capacity, and there's no undue influence detected. What do we do with those sorts of things? And in the solicitors notes. 

Ian Hull  00:46:25

Sure, well, let's start talking that through, and then throw it right back to the medical community, because I sort of laugh about the technology, technology tools that are out there for law. The one thing the doctors are way ahead of us on is managing technology tools. I think if anyone ever said to me that the doctor should not use AI to try to solve a medical problem, you'd sort of look at them sideways. Well, lawyers hardly ever go into that tool enough to solve what is not nearly as an important problem in that sense. So I think technology has to be something we get top of mind as lawyers. And coming back, you're hearing it from these three experts, the notes are so important, but we're also look, we're in the provision, we're in the business of performance and and so when we're as lawyers taking notes, I always think of it this way. I use Zoom. I use Zoom a lot as a recording device. I use otter AI as a tool to track my notes so that there is really no dispute, so that they in terms of that. But I also have to train myself to be a better intake person. I need to be open ended question. I need not to direct the answer to the witness, because it's recorded, and you're going to look like you were directing the witness, if it's a completely leading question. So you don't want your mother in the will, and you told me, because you don't like the way she walks to the church every day, that would be a leading question. It would be documented on the on the tool, and you are not going to be assisting anybody in the end of their day in a courtroom. So the doctors, I think, have are way ahead of us in terms of using the technology in some respects, and in some respects not so much. We've got other tools out there now that AI can help conglomerate the massive amount of data that comes out of a medical assessment. You guys can be as lawyers. We can go get a court order that can get 1000s of pages of medical records thrown your direction to say, Now, make something out of this. Give us an opinion. Well, I think the doctors and the medical community have to also learn how to manage that part of it as well, because I know Ken, you've been involved with it, already starting to play with tools, the technology that are out there to develop a more sufficient and more efficient but also accurate way to analyze vast amount of medical data that comes to you in the course of asking for the opinion. So I really it's a great point. Kim, we've got to as lawyers start to reinvent ourselves. And so just over, and if I could start with you, Ken, what is your perspective on some of the technology tools that are starting to intersect between the medical community and the legal community in the course of your work to help us with the forming of which we're Coming to you guys for is opinions? Right?

Dr. Ken Shulman  00:49:22

Well, I certainly agree. I think that we both as legal profession, medical profession, need to embrace the new technology, but learn how to use it judiciously and wisely and to help us. I don't think that AI is going to replace the kind of executive brain functions that doctors and lawyers need to have to make determinations of capacity. I think the AI tools can be extremely helpful, particularly in reviewing, you know, 1000s of pages of medical records and synthesizing or extracting relevant information. Information that we need, and we can direct AI to do that. Let me say one thing, by the way, about in terms of technology, about videoing the testator, or test the tricks. Very often I'm presented with video of the testator as evidence that they had capacity. I have to say that virtually every time over the years that I've presented with a video of a test taker, and it's sometimes, it's most often the video is being done by the greedy relative who wants to demonstrate that they're capable. And you know, yes, you wanted me to have all the money, didn't you? My despicable siblings shouldn't get anything so most often, let's be fair, let's be clear, most often, they are hoisted on their own petard. The video demonstrates the exact opposite of what they're trying to demonstrate, at least in my experience. So we have to be very careful about technology. It's only as good as the person who's using it and who knows how to interpret it. That said, I agree with Ian, and I'm trying my best now to use AI to at least to review, to make it easier to review 1000s of pages of medical records, but ultimately, I'm the one who has to make the determination of what they demonstrate. 

Ian Hull  00:51:23

So Robin or Carmel, do you? Do you? Are you seeing from your own jurisdictions and embracing of technology, tools at the at the legal side that you're starting to think might have to be adopted in the medical analysis? Or is it something that's still coming down the pipe. Because, you know, both Ken and I have talked about this before. The thing about AI is we still need for law. We still need the advisor at the beginning AI. And as you say, Ken, we need the dock at the beginning, and we need the dock at the end and in the middle. The work that we are wasting our time on when there's technology tools out there is just getting swallowed up, but I don't think we're ever going to lose the front and back of the process. So what are you seeing in the UK, Robin and maybe and Carmel in in Australia, which I will, just as a side note, say that is ridiculously innovative in the legal community, like just through the roof, innovative in the community, legal community, with some of the tools that are coming out of Australia for the practice of law. What are you seeing in your day to day practice that we might be able to either alert ourselves to or watch out for? 

Professor Robin Jacoby 00:52:28

I recuse myself. I'm in my 80s and have retired from taking on new cases, so I'm happy to say I don't have to do anything and mix myself with AI which I don't understand.

Professor Carmelle Peisah  00:52:45

I recuse myself. I'm in my early 60s. I needed to say early that just a spacious coin, and I absolutely it keeps popping up when I'm right looking at a PDF or I'm doing right my notes, it keeps popping up. But actually, in Australia. I think I've had to, because I'm so not interested. I didn't care. But I think I actually have to say we I did not use AI in the preparation of all, but nor do I want to. So yes, I agree. I must say I agree. Just one more thing about the video, totally agree. In fact, I can just think of the last case I did in court was a delightful example, because it was a teaching session. It was a video of a testator. It was a teaching session for me to explain to the judge. This is a teaching example of delirium, like they thought they were showing how much capacity they had, but this was clear cut delivery. What's that? And it was just most magnificent way to educate the judge about delirium. 

Professor Robin Jacoby  00:53:38

I've had the same experience with videos, yeah, exactly. 

Kimberly Whaley  00:53:43

And recordings, not just videos. Oh, Ian and Dr Schulman and I had a case where the clearly the recordings weren't going to prove what the person who proffered them thought they would. Yeah.

Ian Hull  00:53:58

So as a consequence, we settled, um, let's come back into the docs again. 

Ian Hull  00:54:07

We, we, we all speak different language. We all speak English on this seminar, and that's great, but lawyers speak a different language. Docs speak a different language. We all try to plain English it as best we can, but there is a certain amount of quantum error. What might come into my sentence, which I I hit myself when I do it, but I only know five Latin words. But the docs, you guys are great at throwing hemoglobin, blah, blah, blah, blah at us. What are some of the core terms that we should be comfortable with in terms of managing the process on when we get these reports back, and also when we're analyzing and ready to cross examine the reports. Like Ken, I start to you, you talk about, you use the term delusional capacity, no decisional capacity. My notes, I can't even read my own handwriting, but I'm writing it so much. How cool is this? I'm writing notes like a mad person here. I. Um, decisional capacity. There's an illustration. What does that mean to a lawyer? Let's plain English, a couple of the key terms that we need to walk away from that we might expect to hear from a doc.

 Dr. Ken Shulman  00:55:14

Well, I mean, I think the term delusion is worth talking about a little bit here, because delusion is where a term that doctors can certainly help the courts understand what is going on. Actually, John poiser and colleagues recently and I wrote a paper about delusions and the difference between the medical view of delusion and the legal view of delusion was surprising to me that in case law over the years, first of all, again, this is the health, the healthy interchange and pairing between two professions that leads to better understanding and new Law. So for years, the legal profession referred to insane delusions. That was, that was the proper term that was used by the courts when determining whether somebody was suffering from a belief that was delusion. So first of all, the courts and lawyers should not be using the term insane delusion today that that's an archaic term. It's a pejorative term, and it doesn't it's not helpful the other the other thing, the difference, is that in law, the definition of delusion was, I think I'm right. In my legal colleagues will correct me, but the legal definition of the delusion that came to be expressed in case law, reputedly, is a belief that no reasonable person would hold that was the legal definition right now the today, let's be clear, If you use that definition a reasonable belief that no, a belief that no reasonable person would hold half the people in the United States under the current presidential administration would be would meet the criteria for a delusion without question, right? So that's a problem that definition, the medical definition of a delusion, traditionally, is a fixed false belief. And there's a caveat, because fixed, and just from what I said before, a fixed false belief that is not in keeping with one's religious, cultural education or now, political background. So Delusion is a very good example of where the medical and the legal professions need to get on the same page. Delusions, in medical terms, are almost always a function of a underlying mental disorder, and that needs to be explained to the court. I think, Robin, 

Professor Robin Jacoby  00:58:00

yeah, yes. I think just my particular practice is, if I use the term delusion, is always to explain it and to give a definition. And I think this is important, but I would add to your the definition you've given and go back to Carl Jaspers, who's an absolute hero, who's a German psychopathologist, and add that it's a fixed false belief arising from a diagnosed or putative mental disorder that is not consistent with one's political or religious beliefs, and this has to be differentiated from an overvalued idea. And an overvalued idea is defined as a belief. And we're now getting back to the dreaded United States. An overvalued idea is an idea which most, most reasonable people will consider to be not true, but it's held with conviction, but it doesn't arise from any mental disorder. 

Dr. Ken Shulman  00:59:15

I think  that's a key point, that it's it's due to a mental disorder, and that's where doctors have a responsibility and an opportunity to help the court understand when a mental disorder is or is not present, and that should help inform the court in making the determination, 

Kimberly Whaley  00:59:31

Just just just looking at a recent decision on this where the court found that there was no delusion in existence. What if there is no diagnosed disorder? Can you can you glean from the medical notes and records that that was something that was missed before you conclude that there must have been a delusion, because often it is the case that there has been no diagnosed disorder or there's no notes and records in respect of a suspect. 

Professor Carmelle Peisah  01:00:01

Can I answer that? But also add a caveat, the issue is the courts, and this is what further to Ian's comments about the distinction between your thinking and our thinking, our thinking, your thinking is very categorical. You know, red is a color we are more because of science and the inability to prove things, and there's always sort of subtleties to things. We often can't come up with a categorical answer. And despite how I'm presenting today, I'm increasingly, as I get older, less arrogant about my decision, and I'm often unable to make a distinction between an overvalued idea and a delusion, because, and I also fall back on this again, what Ken was saying is that the limitation of us, particularly as retrospective experts. So because I wasn't there and able to examine the test data, sometimes I can't tell the difference between an overvalued idea and and I think that that limitation, it speaks to our humility, understanding that often there is no whether it's so all these elements based on a diagnosis, you're saying there's no evidence of diagnosis. Was it false? Sometimes it's sometimes it's true. Sometimes a woman thinks that her husband's having an affair with a delusional basis, but it's not false. He is having an affair. But the reason she thinks he's having his affair is because the car, the car he's driving, is red, and that means he's having an affair. So often it relies on examination of the person, and sometimes you can't tell that from the note. So I think that humility, I mean, I was saying, sometimes we can't tell And that frustrates lawyers and, of course, judges as well, because we can't, like, I'll often say, look, I defer to the courts because of my limitations of a retrospective expert. That's just the point I wanted to make. I don't know,  

Ian Hull  01:01:59

Yeah, well, Carmel, can we keep going on that just, if you don't mind, because I live in a world of, in my own mind, of overvalued ideas. So I've got to come to terms this concept. But, but on a serious note, you just you raised this point. I just want to sort of, if you could set the stage a little bit here for us lawyers and and for me, you have to talk in terms of this intersection between, okay, what is a contemporaneous report that we could expect out of out of an expert like yourselves, and what is a retrospective report, and the difference and the kind of thinking that goes into that analysis. And if I could just sort of impose on all three of you to give some sort of comment, but Carmel, can you just set the stage? What's a contemporas report, what's a retrospective report? And what are you experts doing with that kind of work product?

Professor Carmelle Peisah  01:02:49

As experts, we've battled for the last 1015, years about the legitimacy of the retrospective expert, so much so, which is why Dr Schulman wrote the Shulman et al paper that you've got copied back in 2021 but that was after years of being accused of being less of value than the contemporaneous expert. And this is despite the fact that a contemporaneous GP who saw the patient and said and writes a report this person was fine and they had the capacity to make all decisions was often preferred to the 20 page considered expert opinion of a retrospective expert. And in fact, actually, I prefer retrospective reports because they're based on reams and reams of evidence collated like you were talking about, I think Susanna was talking about, beautifully, about the kind of evidence that you provide us based on that medical lay and the lawyers evidence a contemporaries report often, when you're asked to do it, all you have is you might have a notes from a GP, you might have run assessment. You don't have family evidence, you don't have anything. So actually, I think retrospective opinions are actually more valued, valid and more valuable. But having said that, the courts have always thought that a doctor who saw the patient, and there have been cases, many cases, certainly in Australia, where the contemporaneous report expert was preferred, which is why, and it says to every one of my reports. But on the other hand, while we're saying those points earlier, I kind of play a little bit with my humility in that it's true. I mean, there are certain situations where you can't beat the value of actually being able to see the patient, can you I mean, the nuances of face to face examination are, you know, really important, as opposed to what's written on paper. So that's 

Professor Robin Jacoby  01:04:45

Yeah,  it depends on the value of the opinion, yes, yes. And have a contemporaneous assessment, which is lousy and valueless, yes, and a retrospective one which is much better, and vice 

Professor Carmelle Peisah  01:04:56

versa, yes, yes.

Dr. Ken Shulman  01:04:58

I think that that's very true. True. I think that a few things are true. I think I think Carmel is right, and I think the lawyers would agree, and certainly been my experience, that the courts still favor contemporaneous reports over retrospect, but there is an inherent bias to that on the assumption that a contemporaneous assessment or examination, at least in theory, gives you the opportunity to close and rationale of individuals that retrospective doesn't because you don't have the individual and you have to rely on the medical record. So in theory, the potential for contemporaneous assessment to be the gold standard is true. There's a bit of a caveat to that as well, because there are situations where, for example, someone is in the very early stages of the dementia. And in the early stages of dementia, they are people often develop changing ideas or perceptions about the people around them, often with suspiciousness, and at the outset, it's hard to determine with certainty that they are actually in the early stages of dementia. It's not unless you follow people over time and and and do these repeat cognitive testing that you can demonstrate that yes, in retrospect, when I saw them, they were actually at the beginning stages of the dementia and the changing attitudes about the daughter in law, who's typically the object of suspiciousness is was a function of their disorder. So it depends right retrospective opinions. You don't have the chance to probe, but you have the benefit of the longitudinal view, you can see what they were like. So it's, it's, as you said, not black and white. It's not categorical. It depends. It depends. 

Professor Carmelle Peisah  01:06:51

I said, Ian, we're wishy washy. So none of their answers really answered your question.  

Dr. Ken Shulman  01:06:56

The courts do need to understand the limits and challenges both types of assessments.

Professor Robin Jacoby  01:07:02

Yeah, I think this most often arises actually, not between medical contemporaneous and medical retrospective, but between, but between medical retrospective and lawyers contemporaneous. And I have had a case, and I'm afraid it's my age now, has prevented me from recording the name of the case. But it's well known. It's well written up, and I shall talk about it tomorrow my lecture, where the the the I gave the opinion in the Court of First Instance that this lady suffered from dementia and that, and she had changed her where it was all the sort of classic thing, and she lacked the capacity both to donate a power of attorney and to make a will, and the judge upheld it, and she lacked knowledge and approval. The judge says it went to the Appeal Court and the idiots there said,

Professor Robin Jacoby  01:08:05

Therefore, I don't mind.

Professor Robin Jacoby  01:08:10

I'm perfectly happy, and I shall name name the Supreme Court judge tomorrow and the appeal judge tomorrow. He went to an inferior college at Oxford to mine, and they said the the retrospective assessment by a doctor is not as valuable as the contemporaneous assessment of the lawyer. The lawyers contemporaneous assessment was not very good. It ignored red flags that the appointment had to be made for the testatrix by her daughter, who happened to be benefiting from the change in the will and the medical notes, of course, which the lawyer wasn't a party to showed she was already starting to be a doubly incontinent, and had several assessments at hospitals that she was demented. However, he was described sinister. Was described as experienced and because he drafted 50 wills a year. However, the the Court of Appeal upheld the judgment because she lacked knowledge and approval and what we were able to what, what I this judgment did was it angered the entire legal profession, apart from the judge who, apart from the barristers who appeared on behalf of the of the woman, the daughter, who benefited from the will, because it was absolutely ludicrous, and he may have been exposed, but the judge, the appeal judge, didn't understand the difference between exposure and experience. He. Exposed. But that's properly because he went to this inferior College in Oxford and he didn't understand it. 

Kimberly Whaley  01:10:08

So on that note, Susanna and I had recently prepared and we can log it on our our websites after after this session, we looked at 10 cases in the past year where courts have looked at contemporary, contemporaneous and rich retrospective assessments, and the consensus is the court always prefers contemporaneous. I myself have always been a big fan of the retrospective, because I feel like you're able to look back in time and develop this picture over time of, you know, when were the capacity characteristics or incapacity characteristics? When did they start? And you look at this whole timeline of capacity, and further to that point, I'm often disappointed when courts will say to Ian and Suzanne and Brian and I Oh, you can't have the medical records from way back then. It's irrelevant. You're only looking at the date of execution of the document. That's the only relevant time period. But it's not because those early beginnings of when there may have been a cognitive disorder or issue may be done, maybe identified, like, five years prior, and then the clinician, the doctor, the expert, is able to then look at it and say, yeah, like, I think at this point in time, there was sufficient capacity, or there wasn't because, and from a clinical perspective, Thrush that out. And so I'm always arguing for, you know, don't restrict the medical records so really important in a retrospective workup to go back in time. Do you? Do you agree with that? 

Professor Carmelle Peisah  01:11:50

Or, God, I couldn't write a report if I've never had medical records restricted. If I couldn't look at records from the record I've asked to see they're often they'll see maybe it just depends on who they've seen in the last year. They might have seen somebody who's focused on the ophthalmological issue, or they might have focused on somebody completely missed their cognitive impairment. And there's this five tiny little gem of a of a Montreal cognitive or a mini mental state or anything, or an observation you know, couldn't recognize her daughter, or something like that that you find in the GPS notes from six years ago, goodness, the dementia was done to be known as it or some little record came in to see GP, because mother's been losing, remember, for the last two years, and that's why it takes hours and hours to go through a fine tooth comb, right from the Start, to look for those gems. If that was restricted, my opinion, probably I would have to say, I'm sorry. I'm in concluded. Because actually, if that's what, if that was, if I was aware of that as an expert, and I said, look, the notes prior to x were restricted, I'll say, I'm sorry. I, you know, I found this from this point. But my opinion is inconcluded because of the lack of, you know, evidence upon which to draw my opinion, and I show my methodology. 

Kimberly Whaley  01:13:06

Dr. Shulman, Dr Jacoby? 

Professor Robin Jacoby  01:13:09

just want to say there was one unforeseen consequences the case that I mentioned, which is actually very important, was that about two I saw about 200 cases after this supreme, not supreme appeal court judgment where solicitors said, Well, what it means is that our assessment is is much more valid than any retrospective assessment. And that, of course, was a disaster, dangerous. 

Dr. Ken Shulman  01:13:38

Well, I think Kim's point is very well taken. And to me, that's a great example of how the medical community or medical experts have a responsibility to help the courts understand that point. Because if you don't understand the nature of dementia and how it's gradual and incipient and starts with mild changes only, and then progresses over time, you're going to miss this kind of information. So that's a great point about the need for medical input into these legal determinations, be it restricting access to certain medical records or not. So, yes, I think that. And in Ontario, we had the recent rellinger ruling on a voir dire that I was involved with, where the other side questioned retrospective capacity assessments as junk science and should not be accepted in court. And thankfully, the judge in that case nixed that and said, yes, the retrospective assessment does have some value to us, and we should take it into consideration when we're making our final legal determination. And it's met. 

Professor Carmelle Peisah  01:14:41

When you say medical opinion, it's good, considered medical opinion, not take the money and run medical opinion. So you will have experts who will have the evidence restricted, part of that and it's a case, it's money, um, like, yeah, all right, I'll make an I'll draw an opinion. So you've got to be able to tell the difference between take the money and run experts and. 

Dr. Ken Shulman  01:15:00

Yeah, nascent experts, Carmel in Ontario, we don't have take the money and run experts, the so called hired guns. Yeah, the courts have eliminated that because, of course, in Ontario and Canada, when you offer a medical expert opinion, the courts have made it very clear that they are complete. They have zero tolerance for a hired gun or take the money and run. We have to sign an acknowledgement of experts, duty that says we are first. Duty is to the court. We have to be objective and non partisan, no matter who retains us, and we have to offer opinions within the scope of our expertise.

Professor Robin Jacoby  01:15:37

We have to sign such a thing as well, but it doesn't prevent somebody for no doing. That's what that

Dr. Ken Shulman  01:15:42

being somewhat facetious about. Yes, I think there is an obligation, you make an important point. There's an obligation for the expert to be seen and to be non partisan and objective, in their opinion. 

Professor Robin Jacoby  01:15:54

Yeah, and we've that's a real problem at the moment in the UK, because I wouldn't call them hired guns, but they are, they are experts who seem to think that their first duty is to the client who's instructing, yes, and that is, that is, that's a hiring Yeah, yes. Well, okay, it's a hard gun. But one of the problems is that one or two of these so called experts have acquired a legal a sort of postgraduate legal qualification, a master's in law at some University, and now tout themselves round as as lawyer psychiatrists. And I had that recently, and I had to put in my report that x is not a lawyer psychiatrist. He's he, he's a, he's a, he's a psychiatrist, and that's his only justification for expertise to the court. 

Dr. Ken Shulman  01:17:04

Well, that's an expression that Ian's very familiar with, copper, ply thy trade. Yes, that's yes. This is all about

Professor Robin Jacoby  01:17:10

exactly, and yeah, and a case he told me that this guy, whom I obviously shall not name, it's got a reputation now for, you know, for being for the client, as it were, 

Dr. Ken Shulman  01:17:25

which has no place here, I say, from my perspective, Ian, I would love to hear if there any questions that the audience has. Well, I'd love to hear what the reaction of the audience is, just this, is this? This type of webinar, of course, is difficult for us, because we're talking into the ether, really, and can't see the audience. Can't get a feel for you know, there was a famous CBC commentator, journalist whose name also escapes me. He used to have a regular show on the weekend, and he referred to his audience because he was a radio announcer, as vacuum land. Hello, vacuum land, because he was talking into a vacuum. But I would like to hear from what the concerns or questions of the audience are. 

Ian Hull  01:18:18

Just okay. We got eight I got 10 minutes. We're early wage people, so we got to shut down at 1:30 so we got lots of stuff to cover in only 10 minutes. We're going to keep this a little bit more punchy just to get through some of the questions. We'll come to the question in a second. All right, so in two minutes or less, what are some of the highlights? Where do these retrospective opinions go wrong? You've already identified the pay for hire types. Where else do they go wrong in terms of susceptibility to attack, ultimately, at a cross examination level, Ken, I know you and I have talked about that in terms of you see some of the other experts, opinions that come into different formats, different approaches. Where do you see? Just a couple of points where you go, this is where there's gaps, or this is where opinions like this are going wrong. And then we'll start hacking away at some of these questions, but we're gonna have to stay on time, because we got to go off at 1:30 

Dr. Ken Shulman  01:19:10

Well, I think, in short, I think you have to stick to what the evidence shows in the medical records. You can start making stuff up and putting together theoretical conclusions that are not based on hard evidence in the medical records. I have to say that I would also agree that, besides the medical records, the solicitors notes are so critical and so important, because when you're doing a retrospective assessment, rarely do you have an opportunity to see an actual capacity assessment relevant to the capacity in question. Only the solicitor who's prepared the will has that potential to have probed at the time of the the will was executed, and the solicitors notes in retrospectives, as are 10. Terribly important when they are deficient. The other side is extremely vulnerable because they don't have if the onus is on the proponents, for example, and they don't have good notes, they're in trouble. So those that's my mission. 

Professor Robin Jacoby  01:20:13

Mine is that experts need to be trained. I had no training because there was no such thing in those days, but I think now that it would be good to train experts. That's why we're holding this course. Exactly. Canada's ahead of the field, as always. 

Ian Hull  01:20:30

Just observations of where you see a real you know, Sir. 

Professor Carmelle Peisah  01:20:36

I said I want to get to the questions. We've talked too much. You're just having too much fun with each other. 

Ian Hull  01:20:43

No, no, it's good. Listen, this is, this is, as they said, Jerry Seinfeld, this is gold. Jerry, this is gold. Okay, so first of all, then, if we go back to the questions and over to you, Kim, can we just let me turn to you on this one in terms of your assessment, when, when you have a client who is masking what's going on generally on when you're when you're when you're dealing with the intake on capacity. What does a lawyer do to break through the the masking of what's really going on in the assessment of the capacity at the lawyer level? Right?

Kimberly Whaley  01:21:20

I think it depends on the circumstances, but I'm usually pretty upfront. Keep in mind, I don't do any drafting, but I'm pretty upfront. And I will say I have to ask you these questions, which may not be readily the answers might not be readily available, and that's okay. We'll just take our time. We'll go through it, but I need to ask you, because you asked me to do a job, I have to do that job properly, and I have to make sure that you have the requisite ability to do what you're doing and what you're asking me to do if it's going to stand the test of litigation. And so I'm going to be tough on you, and we're going to get through it. So I'm just generally very upfront about it, yet sensitive. I also recognize that in most of our files, if you were to ask a client if they would agree to an assessment of capacity to help protect their state plan, because you see perhaps that there may be one or two issues that you want to protect them on nine times nine and a half times out of 10, they say, No, they are completely, vehemently opposed to it, and so they're their own worst enemy. But I, you know again, I don't draft Ian, as you know, but, but I am pretty upfront with my clients, I also make sure so, for example, when I have elderly clients come to the firm for a meeting accompanied by a friend, a caregiver, An overly interested child or partner, I'm always sure to make sure that that person steps out of the not just of my physical office that I'm meeting with my client, but out of the building for some time, so that I can get candid information for my client free of influence to the extent that I can control that. And then another thing I'll say is that, you know, these, these issues are complex. I might meet 2 3 4, times, and, yeah, it costs money and it takes time, but sometimes the real story doesn't come through until the third or fourth.  

Professor Robin Jacoby  01:23:39

No, no, exactly. I was full of approval. I mean, you were quoting red flags there, full of approval for what you just said. 

Professor Carmelle Peisah  01:23:47

Can I just said I'd shut up. But I have to say this, because I'm, first and foremost, not a lawyer psychiatrist, but a human rights psychiatrist. When you're taking instructions for a will, I don't think, I mean, it's rude of me to suggest, but I just can't help it with article 12 of the convention rights persons with disabilities and this push universally for supported I don't think it should be a guessing game. So I think you should have a knowledge of the person. Shouldn't have to spontaneous recall the complexity of their assets or recent asset transfers. And I think this business of, do you know what you know what you have and do you know what you just sold and all that, it really you should have that ability to have that information, but when you're taking the instructions, I don't think it should be a guessing game. Sorry, this might I said my piece, because I know, sure you do that, but I just, I'm just saying for the out to the best opportunity to and write the backup documentation, whatever is necessary to the clients.

Dr. Ken Shulman  01:24:46

Important point that is still not well described and well understood, supportive decision making. There is an art to doing this. You have to ask repeated questions. You have to ensure consistency of response. There is a way to approach decision making, and it's not fair to an individual to expect them to spontaneously and without structure or prompting, recite all the relevant issues and then consider them incapable. They should be given every opportunity to be capable, but it has to be done in a proper way. We haven't yet refined that art.  

Kimberly Whaley  01:25:23

I don't think any clients don't even put their minds to know when they go to a lawyer to give will instructions, they think they're there to to give instructions to do a will. They didn't know that they had to come prepared with all of their assets and property. Go ahead. 

Dr. Ken Shulman  01:25:36

Ian, questions are mounting, and the time is, you know what we're gonna deal with the questions offline. 

Ian Hull  01:25:39

We got one more question. We only have less than five minutes here. And I want to put this to the docs, because this is, this is your input. Is full important our legal system, our legal system is single handedly collapsed, right? We can't get to judges. It's a universal problem across Canada. I'm sure it's across the UK and Australia. What we're trying to do is bring efficiencies to processes, and Kim and I have even tried it on one file recently. What do you think about hot tubbing? Hot tubbing is a solution that is used in is a new tool in this area, and you guys would all be part of a hot tubbing process, I'm sure, if it was involved. But what do you think of that idea in terms of streamlining what can be an expensive, time consuming process. So maybe I could just start with you, Ken, and then we'll work toward Robin and Carmel. Just your thoughts on hot tubbing, because we're going to have to wind up very okay. 

Dr. Ken Shulman  01:26:33

Well, all I would say about hot tubbing is it all depends on who you're getting into the hot tub with. That's that's the key to Hot Topic. 

Kimberly Whaley  01:26:42

So there's a big  are you suggesting that, you know, Ian, I did a good job getting into the hot tub together.

Brian Gilmartin  01:26:48

As I say, Oh, we're talking about today.

Dr. Ken Shulman  01:26:52

That's what I'm talking about. I would really want to get into the hot tub with somebody that I enjoyed being in the hot yeah? 

Professor Robin Jacoby 01:26:57

Well, just interestingly, I've only been in the hot tub once, and it was with a hired gun, the worst hard gun of all. And it depends on who you Yes, exactly. I'm glad to say the judge sorted that out very quickly, and the side instructing me won the case. 

Professor Carmelle Peisah  01:27:18

I'm such a passionate believer in settlement, making things, trying to think, finish things earlier. I had a conversation with our former head of our private division, saying what I was only doing is single expert cases. So I don't work for one side. So I force people, if they want me, you've got to have both sides taking me. Unfortunately, it doesn't always work, even the judge, you know, like I work towards settlement, I feel that's my role as an expert, not to increase antagonism, but to try and get the parties to increase rapprochement and and save the courts time and the money, the money it costs. So I totally agree with you. It doesn't always work. Not everyone's on my side in Australia anyway, 

Kimberly Whaley  01:28:01

I think you have to trust your expert and trust your your counsel that you're approaching it with, because at the end of the day, behind every retainer like that is a client who is probably inherently distrustful of the whole practice. 

Ian Hull  01:28:18

That's absolutely true. Okay, well, we're trying to wind up. So as I say, I'll let Kim finish this off, but thank you to the three of you. Thank you to Susanna. Thank you to Brian and Kim. A great session, and we're there's tons of outstanding questions. We'll get them back and try to address them, and we'll certainly have a lot of blogs ahead of us, from those to all three of the docs. This is a tremendous, tremendous seminar, and one that will be saved for the ages. We've heard, as I say, gold throughout. We can't thank you enough for all of your observations and your candid explanations of this process. And Kim, I'll let you close off and thanks for your time. 

Kimberly Whaley  01:29:02

Well, thank you. You've been fantastic. Thank you for coming. Thank you. Ian and Susanna, thank you, Brian. I don't really have anything to say other than I recommend those three or four papers that we put in the link to you to have a look at their expert and they're really great resources. And finally, as I said, Susanna and materials on the recent decisions regarding contemporaneous and retrospective cases, which I think will be helpful to everybody. And thank you so much for attending today. We very much appreciate it. 

Mallory Hendry  01:29:39

And from Canadian Lawyer, I'd like to thank our hosts and our guest panelists as well for their insights and everyone in the audience as well for being here. Keep an eye out for future webinars and enjoy the rest of your day. Thanks everyone.