Mental Capacity for Adult Guardianship (15:III) - Revision history

LSLAP at 19:30, 13 October 2025

2025-10-13T19:30:08Z

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	{{LSLAP Manual TOC\|expanded = guardianship}}		{{LSLAP Manual TOC\|expanded = guardianship}}
	The fact that a person has a mental illness, disability or impairment is not conclusive of their mental capabilities. Capacity to make a legally binding decision depends upon the type of decision at hand. The legal capacity standards for carrying out transactions, entering into relationships, or managing a person’s affairs are set out both in common law and statute.		The fact that a person has a mental illness, disability or impairment is not conclusive of their mental capabilities. Capacity to make a legally binding decision depends upon the type of decision at hand. The legal capacity standards for carrying out transactions, entering into relationships, or managing a person’s affairs are set out both in common law and statute.

LSLAP: /* D. Capacity to Nominate a Committee */

2025-09-29T00:07:52Z

D. Capacity to Nominate a Committee

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	== D. Capacity to Nominate a Committee ==		== D. Capacity to Nominate a Committee ==
	A “committee” is somebody appointed by the court to make decisions on that person’s behalf, should they be incapable of making their own legal and financial or personal care decisions. The appointment of a “committee of estate” entitles the committee to make legal and financial decisions for the adult. The appointment of a “committee of person” allows the committee to make personal and health care decisions for the adult. The governing legislation with respect to court-appointed committees is the Patients Property Act (PPA). This legislation allows for a person to nominate a committee in writing in the event they become incapable and require the appointment of a committee (s. 9).		A “committee” is somebody appointed by the court to make decisions on that person’s behalf, should they be incapable of making their own legal and financial or personal care decisions. The appointment of a “committee of estate” entitles the committee to make legal and financial decisions for the adult. The appointment of a “committee of person” allows the committee to make personal and health care decisions for the adult. The governing legislation with respect to court-appointed committees is the ''Patients Property Act'' (PPA). This legislation allows for a person to nominate a committee in writing in the event they become incapable and require the appointment of a committee (s. 9).

	There is not much case law that addresses the test to be used when assessing whether a person has the capacity to nominate a committee, but the case law that does exist seems to indicate that the test for capacity to nominate a committee has two components: the nominator must have the capacity to understand the nature of nominating a committee, and they must have the capacity to understand the effect that this nomination has on their interests. This case law also suggests that the capacity required for nominating a committee is lower than the capacity that would be required for a person to be considered a “patient” under the PPA.		There is not much case law that addresses the test to be used when assessing whether a person has the capacity to nominate a committee, but the case law that does exist seems to indicate that the test for capacity to nominate a committee has two components: the nominator must have the capacity to understand the nature of nominating a committee, and they must have the capacity to understand the effect that this nomination has on their interests. This case law also suggests that the capacity required for nominating a committee is lower than the capacity that would be required for a person to be considered a “patient” under the PPA.

LSLAP: /* D. Capacity to Nominate a Committee */

2025-09-29T00:07:39Z

D. Capacity to Nominate a Committee

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	== D. Capacity to Nominate a Committee ==		== D. Capacity to Nominate a Committee ==
	A “committee” is somebody appointed by the court to make decisions on that person’s behalf, should they be incapable of making their own legal and financial or personal care decisions. The appointment of a “committee of estate” entitles the committee to make legal and financial decisions for the adult. The appointment of a “committee of person” allows the committee to make personal and health care decisions for the adult. The governing legislation with respect to court-appointed committees is the Patients Property Act (PPA). This legislation allows for a person to nominate a committee in writing in the event they become incapable and require the appointment of a committee (s. 9).		A “committee” is somebody appointed by the court to make decisions on that person’s behalf, should they be incapable of making their own legal and financial or personal care decisions. The appointment of a “committee of estate” entitles the committee to make legal and financial decisions for the adult. The appointment of a “committee of person” allows the committee to make personal and health care decisions for the adult. The governing legislation with respect to court-appointed committees is the Patients Property Act (PPA). This legislation allows for a person to nominate a committee in writing in the event they become incapable and require the appointment of a committee (s. 9).

	There is not much case law that addresses the test to be used when assessing whether a person has the capacity to nominate a committee, but the case law that does exist seems to indicate that the test for capacity to nominate a committee has two components: the nominator must have the capacity to understand the nature of nominating a committee, and they must have the capacity to understand the effect that this nomination has on their interests. This case law also suggests that the capacity required for nominating a committee is lower than the capacity that would be required for a person to be considered a “patient” under the PPA.		There is not much case law that addresses the test to be used when assessing whether a person has the capacity to nominate a committee, but the case law that does exist seems to indicate that the test for capacity to nominate a committee has two components: the nominator must have the capacity to understand the nature of nominating a committee, and they must have the capacity to understand the effect that this nomination has on their interests. This case law also suggests that the capacity required for nominating a committee is lower than the capacity that would be required for a person to be considered a “patient” under the PPA.

LSLAP: /* B. Capacity to Make an Inter Vivos gift */

2025-09-29T00:06:56Z

B. Capacity to Make an Inter Vivos gift

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	== B. Capacity to Make an ''Inter Vivos'' gift ==		== B. Capacity to Make an ''Inter Vivos'' gift ==
	The term “gift” takes on a particular meaning in a legal context, and the law may vary depending on the nature or type of the gift, and the circumstances in which a gift is given. The test for assessing the capacity to make a gift borrows largely from the tests for capacity in making a will, and from tests for capacity to enter into a contract. The test for testamentary capacity requires that the person making the gift does not have a general unsoundness of mind and that they are not under specific delusions.		The term “gift” takes on a particular meaning in a legal context, and the law may vary depending on the nature or type of the gift, and the circumstances in which a gift is given. The test for assessing the capacity to make a gift borrows largely from the tests for capacity in making a will, and from tests for capacity to enter into a contract. The test for testamentary capacity requires that the person making the gift does not have a general unsoundness of mind and that they are not under specific delusions.

	The test for capacity to enter into a contract, when applied to a gift situation, would require that the person making the gift must be able to understand the terms upon which the gift is given and be capable of forming a rational judgment regarding the effect of giving the gift. It also requires that the intended recipient not have knowledge of “incompetency” on the part of the person giving the gift. In the past, courts have used different elements of these two tests to different degrees to assess capacity for making a gift, and there is debate over the degree to which the test for gift-giving capacity should be based on the test for testamentary capacity vs the test for contractual capacity. <br>		The test for capacity to enter into a contract, when applied to a gift situation, would require that the person making the gift must be able to understand the terms upon which the gift is given and be capable of forming a rational judgment regarding the effect of giving the gift. It also requires that the intended recipient not have knowledge of “incompetency” on the part of the person giving the gift. In the past, courts have used different elements of these two tests to different degrees to assess capacity for making a gift, and there is debate over the degree to which the test for gift-giving capacity should be based on the test for testamentary capacity vs the test for contractual capacity. <br>

LSLAP at 20:41, 19 September 2025

2025-09-19T20:41:49Z

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	A “committee” is somebody appointed by the court to make decisions on that person’s behalf, should they be incapable of making their own legal and financial or personal care decisions. The appointment of a “committee of estate” entitles the committee to make legal and financial decisions for the adult. The appointment of a “committee of person” allows the committee to make personal and health care decisions for the adult. The governing legislation with respect to court-appointed committees is the Patients Property Act (PPA). This legislation allows for a person to nominate a committee in writing in the event they become incapable and require the appointment of a committee (s. 9).		A “committee” is somebody appointed by the court to make decisions on that person’s behalf, should they be incapable of making their own legal and financial or personal care decisions. The appointment of a “committee of estate” entitles the committee to make legal and financial decisions for the adult. The appointment of a “committee of person” allows the committee to make personal and health care decisions for the adult. The governing legislation with respect to court-appointed committees is the Patients Property Act (PPA). This legislation allows for a person to nominate a committee in writing in the event they become incapable and require the appointment of a committee (s. 9).
	There is not much case law that addresses the test to be used when assessing whether a person has the capacity to nominate a committee, but the case law that does exist seems to indicate that the test for capacity to nominate a committee has two components: the nominator must have the capacity to understand the nature of nominating a committee, and they must have the capacity to understand the effect that this nomination has on their interests. This case law also suggests that the capacity required for nominating a committee is lower than the capacity that would be required for a person to be considered a “patient” under the PPA.		There is not much case law that addresses the test to be used when assessing whether a person has the capacity to nominate a committee, but the case law that does exist seems to indicate that the test for capacity to nominate a committee has two components: the nominator must have the capacity to understand the nature of nominating a committee, and they must have the capacity to understand the effect that this nomination has on their interests. This case law also suggests that the capacity required for nominating a committee is lower than the capacity that would be required for a person to be considered a “patient” under the PPA.


	== E. Capacity to Enter a Contract ==		== E. Capacity to Enter a Contract ==

LSLAP at 20:41, 19 September 2025

2025-09-19T20:41:26Z

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	A gift is voidable if the person giving it lacked the mental capacity necessary to do so. Voidable in this situation means that the person who gave the gift can legally take it back as long as it remains with the original recipient. However, if the recipient could not reasonably have known that the person giving it lacked capacity, the gift may not be voidable. This is also true if the recipient gave consideration for the gift. <br>		A gift is voidable if the person giving it lacked the mental capacity necessary to do so. Voidable in this situation means that the person who gave the gift can legally take it back as long as it remains with the original recipient. However, if the recipient could not reasonably have known that the person giving it lacked capacity, the gift may not be voidable. This is also true if the recipient gave consideration for the gift. <br>


	== C. Capacity to Make a Beneficiary Designation ==		== C. Capacity to Make a Beneficiary Designation ==

LSLAP: Updates matching revisions to the new edition of the LSLAP manual

2025-09-19T20:40:34Z

Updates matching revisions to the new edition of the LSLAP manual

← Older revision		Revision as of 20:40, 19 September 2025
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	== B. Capacity to Make an ''Inter Vivos'' gift ==		== B. Capacity to Make an ''Inter Vivos'' gift ==
	The term “gift” takes on a particular meaning in a legal context, and the law may vary depending on the nature or type of the gift, and the circumstances in which a gift is given. The test for assessing the capacity to make a gift borrows largely from the tests for capacity in making a will, and from tests for capacity to enter into a contract. The test for testamentary capacity requires that the person making the gift does not have a general unsoundness of mind and that they are not under specific delusions. The test for capacity to enter into a contract, when applied to a gift situation, would require that the person making the gift must be able to understand the terms ~~of giving~~ the gift~~, form~~ a rational judgment of the effect of giving the gift~~, and the person who would be~~ the recipient ~~of the gift must~~ not have knowledge of “incompetency” on the part of the person giving the gift. In the past, courts have used different elements of these two tests to different degrees to assess capacity for making a gift, and there is debate over to ~~what degree~~ the test ~~for capacity~~ for gift-giving should be based on the test for testamentary capacity ~~versus~~ the test for contractual capacity.<br>		The term “gift” takes on a particular meaning in a legal context, and the law may vary depending on the nature or type of the gift, and the circumstances in which a gift is given. The test for assessing the capacity to make a gift borrows largely from the tests for capacity in making a will, and from tests for capacity to enter into a contract. The test for testamentary capacity requires that the person making the gift does not have a general unsoundness of mind and that they are not under specific delusions.
			The test for capacity to enter into a contract, when applied to a gift situation, would require that the person making the gift must be able to understand the terms upon which the gift is given and be capable of forming a rational judgment regarding the effect of giving the gift. It also requires that the intended recipient not have knowledge of “incompetency” on the part of the person giving the gift. In the past, courts have used different elements of these two tests to different degrees to assess capacity for making a gift, and there is debate over the degree to which the test for gift-giving capacity should be based on the test for testamentary capacity vs the test for contractual capacity. <br>

			A gift is voidable if the person giving it lacked the mental capacity necessary to do so. Voidable in this situation means that the person who gave the gift can legally take it back as long as it remains with the original recipient. However, if the recipient could not reasonably have known that the person giving it lacked capacity, the gift may not be voidable. This is also true if the recipient gave consideration for the gift. <br>

	The transfer of property via gift is voidable against the person giving the property as gift, unless the person receiving the gift has given consideration or had no reasonable way of knowing that the person giving the gift lacked the capacity to do so.

	== C. Capacity to Make a Beneficiary Designation ==		== C. Capacity to Make a Beneficiary Designation ==
	Beneficiary designations are commonly used when someone wants funds from an insurance or savings plan to go directly to someone else (the beneficiary) should they die. The test for assessing whether the designator had the requisite capacity to make this designation depends on the nature of what is being designated~~; in~~ recent years, courts in British Columbia have primarily applied a test that is similar to the test for testamentary capacity.		Beneficiary designations are commonly used when someone wants funds from an insurance or savings plan to go directly to someone else (the beneficiary) should they die. The test for assessing whether the designator had the requisite capacity to make this designation depends on the nature of what is being designated. In recent years, courts in British Columbia have primarily applied a test that is similar to the test for testamentary capacity.

	== D. Capacity to Nominate a Committee ==		== D. Capacity to Nominate a Committee ==
	A “committee” is somebody appointed by the court to make decisions on that person’s behalf, should they be incapable of making their own legal and financial or personal care decisions. The appointment of a ~~committee~~ of ~~estate~~ entitles the committee to make legal and financial decisions for the adult. The appointment of a ~~committee~~ of ~~person~~ allows the committee to make personal and health care decisions for the adult. The governing legislation with respect to court-appointed committees is the Patients Property Act (PPA). This legislation allows for a person to nominate a committee in writing in the event they become incapable and require the appointment of a committee (s 9).~~<br>~~		A “committee” is somebody appointed by the court to make decisions on that person’s behalf, should they be incapable of making their own legal and financial or personal care decisions. The appointment of a “committee of estate” entitles the committee to make legal and financial decisions for the adult. The appointment of a “committee of person” allows the committee to make personal and health care decisions for the adult. The governing legislation with respect to court-appointed committees is the Patients Property Act (PPA). This legislation allows for a person to nominate a committee in writing in the event they become incapable and require the appointment of a committee (s. 9).
			There is not much case law that addresses the test to be used when assessing whether a person has the capacity to nominate a committee, but the case law that does exist seems to indicate that the test for capacity to nominate a committee has two components: the nominator must have the capacity to understand the nature of nominating a committee, and they must have the capacity to understand the effect that this nomination has on their interests. This case law also suggests that the capacity required for nominating a committee is lower than the capacity that would be required for a person to be considered a “patient” under the PPA.

	There is not much case law that addresses the test to be used when assessing whether a person has the capacity to nominate a committee, but the case law that does exist seems to indicate that the test for capacity to nominate a committee has two components: the nominator must have the capacity to understand the nature of nominating a committee, and they must have the capacity to understand the effect that this nomination has on their interests. This case law also suggests that the capacity required for nominating a committee is lower than the capacity that would be required for a person to be considered a “patient.”

	== E. Capacity to Enter a Contract ==		== E. Capacity to Enter a Contract ==
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	== H. Capacity to Form the Intention to Live Separate and Apart from a Spouse ==		== H. Capacity to Form the Intention to Live Separate and Apart from a Spouse ==
	It is important to keep in mind that the capacity to form the intention to live separate and apart from a spouse is intertwined with family law considerations and family law legislation. However, the main test used to determine this capacity is referred to as the “test of capacity to separate,” and it has its origins in case law. The test in these instances centres on whether the person had the capacity to appreciate the implications and ramifications of ending that marriage.		It is important to keep in mind that the capacity to form the intention to live separate and apart from a spouse is intertwined with family law considerations and family law legislation. However, the main test used to determine this capacity is referred to as the “test of capacity to separate,” and it has its origins in case law. The test in these instances centres on whether the person had the capacity to appreciate the implications and ramifications of ending that marriage. <br>

	It is important to keep in mind that the capacity to form the intention to live separate and apart from a spouse is intertwined with family law considerations and family law legislation. However, the main test used to determine this capacity is referred to as the “test of capacity to separate,” and it has its origins in case law. The test in these instances centres on whether the person had the capacity to appreciate the implications and ramifications of ending that marriage. Notably, the presence of delusions is treated differently in this test of capacity than they are in many other types of capacity: just because a person is experiencing delusions that affected their decision to live separate and apart from a spouse does not necessarily mean that they lacked capacity in these situations. The test for capacity to separate has a similarly low stringency as the test for capacity to marry.		Notably, the presence of delusions is treated differently in this test of capacity than they are in many other types of capacity: just because a person is experiencing delusions that affected their decision to live separate and apart from a spouse does not necessarily mean that they lacked capacity in these situations. The test for capacity to separate has a similarly low stringency as the test for capacity to marry.<br>

	If a person is found to lack the capacity to form the intention to live separate and apart from a spouse, then it is unlikely that this act of living apart from their spouse will be enough to end a marriage.		If a person is found to lack the capacity to form the intention to live separate and apart from a spouse, then it is unlikely that this act of living apart from their spouse will be enough to end a marriage.

LSLAP at 00:19, 3 September 2024

2024-09-03T00:19:24Z

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	The fact that a person has a mental illness, disability or impairment is not conclusive of their mental capabilities. Capacity to make a legally binding decision depends upon the type of decision at hand. The legal capacity standards for carrying out transactions, entering into relationships, or managing a person’s affairs are set out both in common law and statute.		The fact that a person has a mental illness, disability or impairment is not conclusive of their mental capabilities. Capacity to make a legally binding decision depends upon the type of decision at hand. The legal capacity standards for carrying out transactions, entering into relationships, or managing a person’s affairs are set out both in common law and statute.

Clicklaw Editor: /* I. Capacity to Enter into an Unmarried Spousal Relationship */

2023-08-15T20:17:35Z

I. Capacity to Enter into an Unmarried Spousal Relationship

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LSLAP at 22:29, 11 August 2023

2023-08-11T22:29:01Z

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	The fact that a person has a mental illness, disability or impairment is not conclusive of their mental capabilities. Capacity to make a legally binding decision depends upon the type of decision at hand. The legal capacity standards for carrying out transactions, entering into relationships, or managing a person’s affairs are set out both in common law and statute.		The fact that a person has a mental illness, disability or impairment is not conclusive of their mental capabilities. Capacity to make a legally binding decision depends upon the type of decision at hand. The legal capacity standards for carrying out transactions, entering into relationships, or managing a person’s affairs are set out both in common law and statute.
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	* Form the intention to live separate and apart from a spouse		* Form the intention to live separate and apart from a spouse
	* Enter an unmarried spousal relationship		* Enter an unmarried spousal relationship

	The planning statutes set out the specific test for capacity that is required for an adult to sign a valid planning document, and it is important to note that the tests differ depending on the nature of the decision being made. Just because someone lacks capacity in one regard does not mean that they necessarily lack capacity in another context.		The planning statutes set out the specific test for capacity that is required for an adult to sign a valid planning document, and it is important to note that the tests differ depending on the nature of the decision being made. Just because someone lacks capacity in one regard does not mean that they necessarily lack capacity in another context.