Many Albertans put Powers of Attorney and Personal Directives in place to ensure that trusted individuals can make decisions on their behalf if they become incapable of doing so themselves.
But what happens when the person who granted those powers later believes they have regained capacity and wants to take back control?
The Alberta Court of Appeal recently addressed that question in Cerato v. Cerato, 2026 ABCA 40. The decision highlights the importance of strong capacity evidence and demonstrates how courts evaluate challenges to existing Powers of Attorney and Personal Directives.
The Background
Nadia Maria Cerato had previously signed a Personal Directive and an Enduring Power of Attorney appointing her brother to make decisions on her behalf if she became incapable. In 2019, medical professionals determined that she lacked capacity, causing those documents to come into effect.
Ms. Cerato later applied to revoke the arrangements, arguing that she had regained capacity. She also sought the removal of a caveat registered against property in her name.
The central issue before the courts was whether she had the necessary capacity to resume control of her personal, legal, and financial affairs.
The Importance of Capacity Assessments
As part of the proceedings, the Court directed Alberta Health Services' Regional Capacity Assessment Team (RCAT) to conduct a formal capacity assessment.
The RCAT assessment involved:
- Reviewing medical records;
- Gathering information from care providers;
- Meeting with Ms. Cerato on multiple occasions; and
- Evaluating her decision-making abilities across several areas of functioning.
The assessment concluded that she lacked capacity in a number of important areas, including:
- Health care decisions;
- Accommodation decisions;
- Legal non-financial matters; and
- Financial decision-making.
The assessors recommended that both the Personal Directive and Enduring Power of Attorney remain in place.
Why the Court Accepted the RCAT Report
The Court of King's Bench accepted the RCAT assessment and dismissed Ms. Cerato's application. She subsequently appealed.
On appeal, the Alberta Court of Appeal upheld the lower court's decision.
The Court noted that the RCAT report was the most current and comprehensive assessment available because it was based on:
- A review of the complete medical history;
- Contemporary observations;
- Information from care providers; and
- Direct interaction with the individual being assessed.
The decision serves as a reminder that courts often place significant weight on detailed, professionally prepared capacity assessments.
Appeals Are Not a Second Trial
One important lesson from Cerato is that an appeal is not simply an opportunity to ask a new court to reconsider the facts.
The Court of Appeal emphasized that its role was not to conduct a new assessment of Ms. Cerato's capacity. Instead, the Court's job was to determine whether the original judge made a reviewable error based on the evidence available at the time.
This distinction is critical.
Many litigants believe that if they disagree with a result, they can simply present their case again on appeal. In reality, appellate courts generally defer to findings made by the original judge unless a significant error can be identified.
The Challenge of Introducing New Evidence on Appeal
Ms. Cerato also attempted to introduce new evidence during the appeal.
The proposed evidence included:
- Volunteer activities;
- Online educational courses;
- Communications with family members; and
- Later capacity assessments.
The Court rejected the request.
In doing so, it applied the well-established test for fresh evidence on appeal. New evidence must be relevant, credible, unavailable at the original hearing despite reasonable efforts, and capable of affecting the outcome of the case.
The Court concluded that the proposed evidence did not satisfy those requirements.
Everyday Functioning Does Not Necessarily Prove Legal Capacity
One particularly interesting aspect of the decision is the Court's treatment of volunteer work and educational activities.
The Court acknowledged that Ms. Cerato had participated in various activities. However, it found that those activities did not adequately address the more complex capacity issues identified in the medical evidence.
This highlights an important legal principle:
A person may be able to perform many everyday tasks while still lacking capacity to make certain legal or financial decisions.
Capacity is often task-specific. The ability to volunteer, complete courses, or manage some daily activities does not necessarily establish the ability to understand and manage complex financial or legal matters.
Practical Lessons for Alberta Families
The decision offers several valuable lessons:
Capacity Evidence Matters
Courts place significant weight on thorough, professional capacity assessments.
Current Information Is Important
More recent and comprehensive assessments will generally carry greater weight than older or less detailed opinions.
Appeals Have Limits
An appeal is not a new trial and does not provide an automatic opportunity to present entirely new evidence.
Capacity Is Not All-Or-Nothing
A person may be capable in some areas of life while lacking capacity in others. The legal analysis focuses on the specific decisions at issue.
Planning Documents Remain Powerful
Properly drafted Powers of Attorney and Personal Directives can continue to operate effectively when supported by reliable evidence of incapacity.
The Bottom Line
Cerato v. Cerato reinforces the importance of comprehensive capacity evidence when attempting to challenge or revoke an existing Personal Directive or Enduring Power of Attorney. Courts are unlikely to overturn prior decisions without persuasive medical and evidentiary support.
For individuals and families facing concerns about capacity, decision-making authority, Powers of Attorney, Personal Directives, guardianship, or trusteeship, obtaining legal advice early can help clarify rights, responsibilities, and available options.
MerGen Law is Here to Help You
At MerGen Law, we assist clients throughout Alberta with estate planning, adult guardianship and trusteeship matters, Powers of Attorney, Personal Directives, capacity disputes, and estate litigation.
This article is intended for informational purposes only and does not constitute legal advice. Individuals facing concerns about Powers of Attorney and Personal Directives should seek professional advice tailored to their specific circumstances.