Difference between revisions of "Mental Capacity for Adult Guardianship (15:II)"

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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.
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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 (http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-Law_Tests_of_Capacity_FINAL.pdf), which covers capacity to do the following:
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• Make a will
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• Make an inter vivos gift
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• Make a beneficiary designation
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• Nominate a committee
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• Enter into a contract
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• Retain legal counsel
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• Marry
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• Form the intention to live separate and apart from a spouse
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• Enter into an unmarried spousal relationship
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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. Thus, just because someone lacks capacity in one regard, does not mean that they necessarily lack capacity in another context.
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Revision as of 10:54, 15 September 2020



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 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 (http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-Law_Tests_of_Capacity_FINAL.pdf), 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 • Enter into 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. Thus, just because someone lacks capacity in one regard, does not mean that they necessarily lack capacity in another context.



This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 21, 2019.
© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.


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