Capacity Is Not a Number: A Case Comment on D.R. v. A.R., 2026 ONSC 796
Overview
Last week’s STEP Atlantic seminar was one of the best in recent memory, and it dug into this case which I found fascinating. D.R. v. A.R. is an Ontario decision — the applicable legislation is the Substitute Decisions Act, 1992 — but the questions it raises about expert capacity evidence, the limits of cognitive testing, and the distinction between needing help and lacking capacity are universal.
The decision rewards careful reading. Justice Dietrich of the Ontario Superior Court (Estates List) dismissed an application to appoint a guardian of property for an 86-year-old widow with mild cognitive impairment and a documented history of signing documents she did not understand. She did so not because the court was satisfied that the respondent had capacity in any robust sense, but because there was a less restrictive path available — one that respected her autonomy to the fullest extent possible.
The result is interesting. What I found most interesting was how the court used the expert evidence to get there.
Background and Facts
Ms. A.R. is the 86-year-old matriarch of a wealthy family. She and her late husband accumulated substantial assets through an import and retail business and through real property development. Her husband managed the business affairs throughout their marriage. He suffered a debilitating stroke in November 2023 and died in October 2024. On his death, Ms. A.R. inherited his estate, which included shares worth tens of millions of dollars.
Before turning to the facts, I want to note an interesting procedural point. At the parties’ request, the court granted a sealing order directing that certain confidential information be kept from the public record. The reasons are anonymized: the parties are identified only by initials, and the family companies by fictional names. This is an exceptional step — our courts operate on a presumption of openness — and the fact that all parties sought it, and that the court granted it on those terms, says something about the nature of what was at stake. It also serves as a reminder that capacity proceedings involve real people in genuinely vulnerable circumstances, and that the procedural architecture of the litigation should reflect that.
The background is complicated by family conflict. One son, S.R., lived in the family home and was making large cash withdrawals from Ms. A.R.’s accounts, which she acknowledged without being able to explain. Another son, A. (B.) R., had settled prior litigation against his parents and then — the day before his father’s death — obtained Ms. A.R.’s signature on documents giving him control over a company holding a New Jersey judgment worth tens of millions of U.S. dollars. Ms. A.R. later acknowledged she had not understood what she signed.
The Attorneys for Property — appointed under a 2014 continuing power of attorney — brought the application to have a professional guardian appointed. Ms. A.R. opposed it. She had also, in the intervening period, attempted to revoke the 2014 power of attorney and retained new counsel. The validity of the revocation turned, in part, on her capacity. The court was therefore required to address capacity at several levels: capacity to manage property, capacity to give and revoke a power of attorney, and capacity to retain and instruct counsel.
The Three Assessments
The medical evidence is the heart of the case. There were three assessments, conducted by two different psychiatrists over a period of eight months. Their findings did not contradict each other in the way that competing experts typically do — but they did not align in a way that made the court’s analysis straightforward, either.
The First Assessment — Dr. K. Shulman, December 2024. This assessment was arranged by Ms. A.R.’s then-counsel, unbeknownst to the Attorneys for Property, less than two months after her husband’s death. Dr. K. Shulman concluded that Ms. A.R. was clearly incapable of managing her own property and was extremely vulnerable to influence. On the MMSE, she scored 22 out of 30, consistent with mild cognitive impairment. She could not identify the value of the family companies, could not recall resigning as a director, and could not identify her own lawyer. She acknowledged, of her own accord, that she was not capable of managing the businesses or finances on her own, and that she needed independent counsel.
But there is a detail here that is worth emphasizing. Dr. K. Shulman also noted, in that same report, that Ms. A.R.’s difficulties had more to do with her lifelong dependence on her husband to manage their affairs than with any major neurocognitive disorder. There was no Alzheimer’s diagnosis. No delusions. The impairment was mild. The functional deficits were real — but their source was, at least partly, contextual.
The Second Assessment — Dr. K. Shulman, April 2025. This assessment was arranged jointly by counsel for both sides, and the questions put to the doctor were different. This time, he was asked to assess Ms. A.R.’s capacity to retain and instruct counsel and to appreciate the nature of the proceedings against her. He found her capable. She could process the information her lawyers presented. She could articulate the advantages and drawbacks of the options available to her. She could express her wishes clearly and consistently.
Her cognitive scores were unchanged. What had changed was the question.
The Third Assessment — Dr. R. Shulman, August 2025. Ms. A.R.’s counsel independently retained a second psychiatrist, Dr. R. Shulman. He administered both the MMSE (again 22/30) and the MoCA (17/30, consistent with mild cognitive impairment). His mandate was to assess capacity to manage property and capacity to give and revoke a power of attorney.
His conclusions were more granular than those in Dr. K. Shulman’s first report. He acknowledged the cognitive impairment. He acknowledged the risk that it created. But he drew a distinction the first report had not drawn so cleanly: Ms. A.R. had the cognitive ability to process, retain, and articulate the information required to manage her property — she simply required assistance to plan and carry out decisions. She could decide. However, she could not execute independently.
With respect to the power of attorney specifically, Dr. R. Shulman walked through the statutory criteria in s. 8 of the SDA and found them satisfied. Ms. A.R. knew what her property was and its approximate value. She understood what an attorney for property could do on her behalf. She appreciated the risk of misuse. She could provide cogent reasons for why she would not appoint either of the sons she distrusted. Her justification was consistent throughout the assessment.
The Court’s Analysis
Justice Dietrich read the reports cumulatively, not as a competition between duelling experts. Both assessors agreed on the central facts: mild cognitive impairment, vulnerability to undue influence, and a need for assistance. What they disagreed on — or what the first report simply did not address — was whether needing assistance is the same thing as lacking capacity.
It is not. And that distinction carried the case.
The cross-examination of Dr. K. Shulman was pivotal. He conceded, under questioning, that what Ms. A.R. had actually told him was that she needed assistance to manage her affairs — not that she needed someone else to make decisions for her. The leap from “I need help” to “I am incapable” had been made in the framing of the report, not in what she said. That concession undermined the foundation of the first report without discrediting the doctor.
The court also gave weight to the fact that Ms. A.R.’s expressed wishes had been consistent throughout: she wanted her autonomy back, she wanted new attorneys she trusted, she did not want the Attorneys for Property or their proposed guardian. That consistency — expressed clearly across multiple assessments and multiple months — was itself evidence of functional capacity.
Still, the court was not simply deferring to her preferences. Under s. 22(3) of the SDA, a guardian shall not be appointed if the need for decisions can be met by a less restrictive alternative. The court found that alternative in a new power of attorney, executed with the assistance of independent counsel. That path would give Ms. A.R. the support both experts said she needed, while preserving her right to choose who provided it. Accordingly, the application was dismissed.
Takeaways for Practitioners
D.R. v. A.R. is useful to planners and litigators alike, as it helps us to better understand the role and limitations of expert evidence in capacity proceedings.
The question put to the assessor shapes the answer. The first report found incapacity. The second found capacity to instruct counsel. The third found capacity to give a power of attorney. These are not contradictory findings — they are answers to different questions, applied to a person whose cognitive profile was consistent across all three assessments. Before retaining an expert in a capacity proceeding, counsel should give a great deal of thought to the precise questions they will be asking.
Cognitive test scores are not a proxy for legal capacity. Ms. A.R. scored 22/30 on the MMSE in December 2024. She scored 22/30 again in August 2025. Her cognitive state did not change. The legal conclusions drawn from that state changed significantly, because the legal questions changed. Scores matter, of course, but they are not determinative on their own. Nor should they be.
Cross-examination of capacity assessors is critical. The concession extracted from Dr. K. Shulman — that Ms. A.R. had described needing assistance, not needing a substitute decision-maker — was the turning point of the case. It was available in the first report for anyone who read it carefully. Good cross-examination does not always require a contradiction; sometimes a simple clarification can be just as effective.
Context contaminating the assessment is a real risk. The first assessment was conducted less than two months after Ms. A.R.’s husband of sixty years had died. Her husband had managed all of their business affairs throughout their marriage. Dr. K. Shulman himself noted that her functional limitations were partly attributable to that lifelong reliance, not to cognitive decline alone. Timing matters. Grief, disorientation, and situational overwhelm are not equivalent to incapacity, and an assessment conducted in the immediate aftermath of a major loss should be read with that in mind.
The least restrictive alternative principle has teeth. In Ontario, the SDA prohibits guardianship where a less restrictive alternative is available. Nova Scotia’s Adult Capacity and Decision-making Act reflects similar principles. The takeaway for practitioners on both sides of these applications is the same: the question is not just whether the respondent lacks capacity, but whether the remedy sought is the minimum intervention necessary. A well-structured power of attorney, made with independent counsel, may often be that minimum. Guardianship (or representation, as it is called here in Nova Scotia) is a blunt instrument and should be used with restraint.
For planners: document the capacity conversation. Ms. A.R.’s situation — a surviving spouse who relied entirely on her husband to manage substantial business and financial affairs — is not unusual. The transition from spouse to sole decision-maker can be abrupt, and the window for sound planning is often narrow. Practitioners acting in estate planning matters should consider capacity documentation proactively when the circumstances call for it: not as a defensive exercise, but as part of good practice. Had Ms. A.R.’s own testamentary and planning intentions been documented while she had capacity to do so without dispute, this proceeding might have looked very different.
Conclusion
D.R. v. A.R. is a well-reasoned decision that takes the expert evidence seriously without treating it as dispositive. After all, the judge is the final arbiter of capacity.
Justice Dietrich’s analysis demonstrates that capacity is not a binary finding, that the same person can have capacity for some purposes and not others, and that the court’s role is to find the path that protects the vulnerable while respecting what autonomy remains. These are universal principles that should inform all capacity matters.
