Overview of Adult Guardianship and Incapacity (15:III)

Capacity or incapacity relate to the effect of mental disability, illness, or impairment on a person’s capacity to create or enter into legal relations. A person’s capacity to make a legally binding decision depends on the type of decision at hand. The various legal capacity standards for carrying out transactions, entering into relationships, or managing a person’s affairs, are set out in different legal sources — some are created by statute and others find their expression in court decisions. The various common law capacity standards are discussed in great length in the upcoming BC Law Institute’s Report on the Common Law Tests of Incapacity, which covers capacity to do the following:

• make a will;
• make an inter vivos gift;
• make a beneficiary designation;
• nominate a committee;
• enter into a contract;
• retain legal counsel;
• marry;
• form the intention to live separate and apart from a spouse; and
• enter into an unmarried spousal relationship.

What follows is an overview of the interplay of incapacity with various legal decisions and responsibilities.

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).