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Difference between revisions of "Overview of Adult Guardianship and Incapacity (15:III)"
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Overview of Adult Guardianship and Incapacity (15:III) (view source)
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== C. Capacity to Make a Contract == | == C. Capacity to Make a Contract == | ||
To enter into a contract, a person must have the mental capacity to understand both the nature of the contract and its effect on his or her interests. If a | To enter into a contract, a person must have the mental capacity to understand both the nature of the contract and its effect on his or her interests. If a contractor is unaware that the contractee has an impairment or illness that impacts capacity, the contract may be enforceable against the contractee and/or the committee. Some cases indicate, however, that even if the contractor had no notice of the contractee’s incapacity, the contract may still be set aside as “unfair”. If the contractor knows or a reasonable person would have known that the contractee was mentally ill, the contract is voidable. | ||
== D. Drafting a Will == | |||
Section 36(1) of the ''Wills, Estates and Succession Act'' [WESA] provides that “[a] person who is 16 years of age or older and who is mentally capable of doing so may make a will.” However, the capacity necessary to draft a will is not set out in the Act, but has been developed through common law. | |||
To possess testamentary capacity an individual must be of “sound mind, memory and understanding” (''Banks v Goodfellow'' (1870), LR 5 QB 549 at 560 (Eng CA), a testator must be capable of understanding the following at the time the will is created, both at the time of providing instructions and executing the will: | |||
*the nature and effect of making a will; | |||
*the extent of the testator’s property that may be disposed by a will; | |||
*the persons who are to receive the property under the will, and the moral claims of persons (such as family members and others who are close to the testator) who should receive a share of that property; and | |||
*the way in which the assets are to be distributed under the will. | |||
For more information, please refer to the Making and Executing a Will section in [[Introduction to Wills and Estates (16:I) | Chapter 16 (Wills and Estates)]] of this manual. | |||
There is no statutory authority specifically declaring that a person with a developmental disability or cognitive impairment cannot draft a will. However, it is advised that a mentally disabled person have a written doctor’s opinion confirming his or her capacity to draft a will. The appointment of a committee prior to the testator having made the will in question does not in itself demonstrate incapacity to make a will, though there is a much heavier burden on the person making the will to prove testamentary capacity under such circumstances. | |||
== E. Capacity to Retain and Instruct Counsel == | |||
The test of capacity to retain legal counsel lacks a defining court case. Capacity is presumed unless circumstances indicate otherwise, and the capacity to retain (and instruct) legal counsel is strongly linked to the matter for which the legal counsel is being retained. Law students may wish to consider the standards for dealing with individuals with diminished capacity set out in the ''Code of Professional Conduct for British Columbia''. | |||
