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.

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.

A. Capacity to make a will

The capacity to make a will is commonly referred to as ‘testamentary capacity’, and the testator of the will must have this capacity at the time that they make the will. There are two main ways in which a testator may be found to lack testamentary capacity. First, if a testator is found to have a ‘general unsoundness of mind’. This assessment takes into account factors including the testator’s ability to appreciate: the nature of a will and the consequences of making one, the property that might be affected by a will, the people who are to receive property under the will, and the way that property is to be distributed under the will. The second way that a testator may be found to lack testamentary capacity is if they are under ‘specific delusions’. Generally, under this assessment, the law will only take those delusions that have a direct bearing on the will itself into account.

Because creating a will involves many complex cognitive steps and evaluations (including not only assessing one’s own interests and positions, but the interests and positions of others in relation to one’s property) the test for testamentary capacity is generally viewed as being particularly stringent compared to the tests for capacity in other types of decision-making—a comparatively high level of capacity is needed. However, the stringency of the test may be able to be adapted depending on how complicated a particular will is, or if there are particularly compelling policy reasons to adjust the test.

Additionally, due to the unique nature of a will, there are other important issues that may arise surrounding the issue of testamentary capacity. For instance: wills must follow formal requirements, suspicious circumstances may be able to have a bearing on the presumption of capacity, and undue influence may have a bearing on the validity of a will.

If a person is found to lack testamentary capacity, British Columbia legislation mandates that there is no way for this person to create a valid will. However, there still may be options available to them so that they are still able to distribute their property in a way that is agreeable to them.


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 for capacity in entering 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 the person giving the gifts’ ‘incompetency’. 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.

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. If a person is lacking the capacity to give a gift, there may be alternative solutions for ensuring that this persons’ property is distributed in the manner that they want.

C. Capacity to make a beneficiary designation

Beneficiary designations are most 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, although in recent years, courts in British Columbia have primarily applied a test that is most similar to the test for testamentary capacity.

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).

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 into a contract

Capacity issues surrounding the formation of a contract also engage the area of contract law, and thus the test to assess someone’s capacity for entering into a contract is informed by unique considerations. Basically, the test for this type of capacity has three components: the person must be able to understand the terms of the contract, they must be able to form a ‘rational judgement of its effects upon [their] interests’, and the other party to the contract must not know that the person is incompetent. There may be other factors of relevance for assessing capacity in a contract situation as well. For instance, the fairness of the contract and delusions held by a party may play a role. The test for capacity in this area is quite flexible and the test varies in stringency depending on the particular context.

Due to the entanglement of this type of capacity with the area of contract law, the test for capacity in these circumstances must take into account not only the interests of the person in question, but also to take into account other interests that are relevant in contract law (such as the interests of the other party to a contract, or the interests of society in general). As such, if a person is found to lack the capacity to enter into a contract, that contract will not be void (as is the case in other situations of capacity, such as wills), but rather the contract will be voidable. Thus, the contract could be affirmed by the person who lacks capacity if they had a period of lucidity, or by a representative.

F. Capacity to retain legal counsel

The capacity to retain legal counsel is unique because while other capacities are considered as isolated in time (for instance, whether or not a person had capacity at the time they entered into a contract), capacity in situations regarding retaining legal counsel can be ongoing—this is referred to as ‘instructing’ legal counsel. While retaining and instructing legal counsel are separate situations, the line between them often gets blurred.

The test for capacity in these situations is largely built upon the test for capacity to enter a contract, as the relationship between a person and their legal counsel is a contractual one. However, due to the unclear boundaries between the isolated retention of legal counsel and the ongoing instruction of legal counsel, many have argued that there is need to incorporate aspects from other areas of as law as well—in particular, the law of agency. The test for the capacity to retain legal counsel is described as being on the more stringent side of the capacity spectrum, due to its ties to the test for contractual capacity and the thought-process and decisions that one must be able to engage in in order to retain legal counsel.

Lawyers must not allow themselves to be retained by prospective clients who lack capacity, although there are exceptions to ensure that people are not left without any way of getting legal help because they lack capacity. Additionally, if a client who had capacity during the retention of legal counsel loses it afterwards, lawyers have an obligation to ensure that the client’s interests are still properly represented.

G. Capacity to marry

Although marriage is a contract, there are special considerations surrounding marriage due to its unique subject matter that take the test for the capacity to marry outside of purely the test to enter into a contract. Historically, the test for the capacity to marry has fallen into the less stringent side of the spectrum. Essentially, the test for the capacity to marry involves an assessment of whether the person in question has able to appreciate what marriage is as a contract, what it means socially and personally, and what the obligations and expectations are for someone who is legally married.

Of course, the idea of ‘marriage’ has changed over time and courts have occasionally tried to alter the test for the capacity to marry—today, the law is somewhat murky about what exactly is and is not required. Some of the attempted changes to the test include: requiring that the person be able to manage their own finances, and requiring that the person be able to appreciate the effect on previous marriages and children.

If a party to a marriage is found to have lacked capacity when they entered the marriage, the marriage is void. This can be argued not only by a party to the marriage but also by anyone else who has a financial interest at stake because of the marriage. Additionally, the test for capacity has also been adapted to apply to situations where one of the parties to the marriage was intoxicated.

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. Notably, the presence of delusions are 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.

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.

I. Capacity to enter into an unmarried spousal relationship

No court in British Columbia, or in Canada for that matter, has ever directly engaged with the issue of whether or not a test for capacity to enter into an unmarried spousal relationship is required. This does not mean, however, that capacity is irrelevant in these situations. Oftentimes when courts analyse these unmarried spousal relationships, the importance of intention is often emphasized. Intention necessarily engages the notion of capacity. Ultimately, the test for the capacity to enter into an unmarried spousal relationship is undefined—if it even exists at all.

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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