Overview of Adult Guardianship and Incapacity (15:III)

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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.). 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 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 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.