Difference between revisions of "Overview of Adult Guardianship and Incapacity (15:III)"

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{{LSLAP Manual TOC|expanded = guardianship}}
{{LSLAP Manual TOC|expanded = guardianship}}


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:  
Capacity or incapacity relates to the effect of mental disability, illness, or impairment of a person’s ability to create or enter into legal relations. Capacity to make a legally binding decision depends on 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 in different legal sources—some are created by statute and others by 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 (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; and
*enter into an unmarried spousal relationship.


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


== A. Guardianship and Committeeship ==
The following is an overview of the between incapacity and legal decisions and responsibilities.


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. 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]].  
When an individual is mentally incapable of managing their affairs, it is possible for someone else to be legally enabled to manage the individual’s affairs or to make decisions about their personal care. This can be done through a court order (outlined in s 6 of the PPA).


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-TEE, 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 section '''[[Guardianship in BC: Committeeship (15:VII)|VII: Guardianship in BC: Committeeship]]'''.  


== B. Marriage and Guardianship of Children ==
The Public Guardian and Trustee of BC can also be appointed as “statutory property guardian” to manage that individual’s financial affairs (outlined in Part 2.1 of the AGA). 


=== 1. Marriage ===
== '''B. Marriage and Guardianship of Children''' ==


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).
=== '''''1. Marriage''''' ===


=== 2. Divorce ===
A person entering 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).  


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


=== 3. Children ===
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.  


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)).  
=== '''''3. Children''''' ===


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.
The new ''Family Law Act'', SBC 2011, c 25 [FLA], came into force March 18, 2013.  Under s 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 s 55(4), in carrying out their 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)).  


== C. Capacity to Make a Contract ==
In addition, s 51(1) of the FLA 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.  


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.
== '''C. Capacity to Make a Contract''' ==


== D. Drafting a Will ==
To enter into a contract, a person must have the mental capacity to understand both the nature of the contract and its effect on their 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.


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.
== '''D. Drafting a Will''' ==


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:
Section 36(1) of the ''Wills, Estates and Succession Act'', SBC 2009, c13 [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.  
*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.
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:


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 willThe 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.
*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
*The way in which the assets are to be distributed under the will


== E. Capacity to Retain and Instruct Counsel ==
For more information, please refer to the '''[[Making and Executing a Will (16A:III)|Making and Executing a Will]]''' section in '''Chapter 16 (Wills and Probate)''' of this manual.


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''.
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 their capacity to draft a willThe 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.  




{{REVIEWED LSLAP | date= June 21, 2019}}
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Latest revision as of 13:16, 23 November 2019



Capacity or incapacity relates to the effect of mental disability, illness, or impairment of a person’s ability to create or enter into legal relations. Capacity to make a legally binding decision depends on 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 in different legal sources—some are created by statute and others by 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 (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 following is an overview of the between incapacity and legal decisions and responsibilities.

A. Guardianship and Committeeship

When an individual is mentally incapable of managing their affairs, it is possible for someone else to be legally enabled to manage the individual’s affairs or to make decisions about their personal care. This can be done through a court order (outlined in s 6 of the PPA).

A court may appoint a person or the Public Guardian and Trustee of BC to be a “committee” (pronounced caw-mi-TEE, 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 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 Part 2.1 of the AGA).

B. Marriage and Guardianship of Children

1. Marriage

A person entering 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 Chapter 3 (Family Law) of this manual.

3. Children

The new Family Law Act, SBC 2011, c 25 [FLA], came into force March 18, 2013. Under s 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 s 55(4), in carrying out their 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) of the FLA 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 their 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, SBC 2009, c13 [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
  • 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 Probate) 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 their 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.


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 21, 2019.
© Copyright 2021, The Greater Vancouver Law Students' Legal Advice Society.