Overview of Adult Guardianship and Incapacity (15:III) - Revision history

LSLAP at 20:16, 23 November 2019

2019-11-23T20:16:56Z

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LSLAP at 06:14, 15 August 2019

2019-08-15T06:14:42Z

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Desy Wahyuni: /* E. Capacity to Retain and Instruct Counsel */

2017-01-05T21:32:39Z

E. Capacity to Retain and Instruct Counsel

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	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.		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''.


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Desy Wahyuni: /* A. Guardianship and Committeeship */

2016-10-28T18:30:05Z

A. Guardianship and Committeeship

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	When an individual is mentally incapable of managing his or her affairs, it is possible for someone else to be legally enabled to manage the individual’s affairs or to make decisions about his or her personal care. This can be done through a court order (outlined in the PAA).		When an individual is mentally incapable of managing his or her affairs, it is possible for someone else to be legally enabled to manage the individual’s affairs or to make decisions about his or her personal care. This can be done through a court order (outlined in the PAA).

	A court may appoint a person or the Public Guardian and Trustee of BC to be a “Committee (pronounced caw-mi-TAY, with emphasis on the end of the word.). Consult ''Re Matthews'', 2013 BCSC 1045, for an example of where the court had to choose between two people as to who to appoint as committee. See [[~~Adult~~ Guardianship ~~and~~ Committeeship (15:VII) \| section VII: Guardianship ~~and~~ Committeeship]].		A court may appoint a person or the Public Guardian and Trustee of BC to be a “Committee (pronounced caw-mi-TAY, with emphasis on the end of the word.). Consult ''Re Matthews'', 2013 BCSC 1045, for an example of where the court had to choose between two people as to who to appoint as committee. See [[Guardianship in BC: Committeeship (15:VII) \| section VII: Guardianship in BC: Committeeship]].

	The Public Guardian and Trustee of BC can also be appointed as “statutory property guardian” to manage that individual’s financial affairs (outlined in the AGA).		The Public Guardian and Trustee of BC can also be appointed as “statutory property guardian” to manage that individual’s financial affairs (outlined in the AGA).

Desy Wahyuni: /* 2. Divorce */

2016-10-28T18:29:19Z

2. Divorce

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	=== 2. Divorce ===		=== 2. Divorce ===

	To proceed with a divorce, a person must have the capacity to form the intention to “live separate and apart”. For more information, refer to [[~~Governing Legislation and Resources for~~ Family Law (3:I) \| Chapter 3 (Family Law)]] of this manual.		To proceed with a divorce, a person must have the capacity to form the intention to “live separate and apart”. For more information, refer to [[Introduction to Family Law (3:I) \| Chapter 3 (Family Law)]] of this manual.

	=== 3. Children ===		=== 3. Children ===

Desy Wahyuni: /* E. Capacity to Retain and Instruct Counsel */

2016-10-28T18:28:30Z

E. Capacity to Retain and Instruct Counsel

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	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''.		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''.


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Desy Wahyuni: /* C. Capacity to Make a Contract */

2016-06-23T23:50:38Z

C. Capacity to Make a Contract

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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 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 WILLSection~~ 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 Chapter 16 (Wills and Estates) of this manual.		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''.

Desy Wahyuni: /* 3. Children */

2016-06-23T18:14:16Z

3. Children

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	In addition, s 51(1) provides generally that a court may appoint a person as a child’s guardian if there is sufficient evidence that it is in the best interests of the child.		In addition, s 51(1) provides generally that a court may appoint a person as a child’s guardian if there is sufficient evidence that it is in the best interests of the child.

			== 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 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 WILLSection 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 Chapter 16 (Wills and Estates) of this manual.

Desy Wahyuni: /* A. Guardianship and Committeeship */

2016-06-23T18:07:11Z

A. Guardianship and Committeeship

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	When an individual is mentally incapable of managing his or her affairs, it is possible for someone else to be legally enabled to manage the individual’s affairs or to make decisions about his or her personal care. This can be done through a court order (outlined in the PAA).		When an individual is mentally incapable of managing his or her affairs, it is possible for someone else to be legally enabled to manage the individual’s affairs or to make decisions about his or her personal care. This can be done through a court order (outlined in the PAA).

	A court may appoint a person or the Public Guardian and Trustee of BC to be a “Committee (pronounced caw-mi-TAY, with emphasis on the end of the word.). Consult ''Re Matthews'', 2013 BCSC 1045, for an example of where the court had to choose between two people as to who to appoint as committee. See [[Adult Guardianship and Committeeship (15:VII) \| section VII: Guardianship and Committeeship]]. The Public Guardian and Trustee of BC can also be appointed as “statutory property guardian” to manage that individual’s financial affairs (outlined in the AGA).		A court may appoint a person or the Public Guardian and Trustee of BC to be a “Committee (pronounced caw-mi-TAY, with emphasis on the end of the word.). Consult ''Re Matthews'', 2013 BCSC 1045, for an example of where the court had to choose between two people as to who to appoint as committee. See [[Adult Guardianship and Committeeship (15:VII) \| section VII: Guardianship and Committeeship]].

			The Public Guardian and Trustee of BC can also be appointed as “statutory property guardian” to manage that individual’s financial affairs (outlined in the AGA).

			== B. Marriage and Guardianship of Children ==

			=== 1. Marriage ===

			A person entering into a marriage contract must have the mental capacity to understand the nature of the contract and the duties and responsibilities it creates. Mental disability may be grounds for annulment if, at the time of the marriage, the mentally disabled person did not understand the nature and consequences of marriage (e.g. that a partner can marry only one person, has a financial obligation to that person and marriage can only end by death or divorce).

			=== 2. Divorce ===

			To proceed with a divorce, a person must have the capacity to form the intention to “live separate and apart”. For more information, refer to [[Governing Legislation and Resources for Family Law (3:I) \| Chapter 3 (Family Law)]] of this manual.

			=== 3. Children ===

			The new ''Family Law Act'', SBC 2011, c 25, came into force March 18, 2013. Under section 55 of this act, a child’s guardian who is facing permanent mental incapacity may appoint a person to be the child’s guardian in addition to the appointing guardian. As per section 55(4), in carrying out his or her parental responsibilities, a guardian appointed under s 55 must consult with the appointing guardian to the fullest possible extent regarding the care and upbringing of the child. The guardian appointed under s 55 continues as the child’s guardian on the death of the appointing guardian unless the appointing guardian revokes to appointment while still capable, or the appointment conditions provide otherwise (s 55(5)).

			In addition, s 51(1) provides generally that a court may appoint a person as a child’s guardian if there is sufficient evidence that it is in the best interests of the child.

Desy Wahyuni: /* A. Guardianship and Committeeship */

2016-06-23T17:50:49Z

A. Guardianship and Committeeship

← Older revision		Revision as of 17:50, 23 June 2016
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	== A. Guardianship and Committeeship ==		== A. Guardianship and Committeeship ==

	When an individual is mentally incapable of managing his or her affairs, it is possible for someone else to be legally enabled to manage the ~~individual’ s~~ affairs or to make decisions about his or her personal care. This can be done through a court order (outlined in the PAA). A court may appoint a person or the Public Guardian and Trustee of BC to be a “Committee (pronounced caw-mi-TAY, with emphasis on the end of the word.). ~~ConsultRe~~ Matthews, 2013 BCSC 1045, for an example of where the court had to choose between two people as to who to appoint as committee. See section VII: Guardianship and Committeeship. The Public Guardian and Trustee of BC can also be appointed as “statutory property guardian” to manage that ~~individual’ s~~ financial affairs (outlined in the AGA).		When an individual is mentally incapable of managing his or her affairs, it is possible for someone else to be legally enabled to manage the individual’s affairs or to make decisions about his or her personal care. This can be done through a court order (outlined in the PAA).

			A court may appoint a person or the Public Guardian and Trustee of BC to be a “Committee (pronounced caw-mi-TAY, with emphasis on the end of the word.). Consult ''Re Matthews'', 2013 BCSC 1045, for an example of where the court had to choose between two people as to who to appoint as committee. See [[Adult Guardianship and Committeeship (15:VII) \| section VII: Guardianship and Committeeship]]. The Public Guardian and Trustee of BC can also be appointed as “statutory property guardian” to manage that individual’s financial affairs (outlined in the AGA).