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Difference between revisions of "Mental Capacity for Adult Guardianship (15:III)"
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Mental Capacity for Adult Guardianship (15:III) (view source)
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= August 11, 2023}} | ||
{{LSLAP Manual TOC|expanded = guardianship}} | {{LSLAP Manual TOC|expanded = guardianship}} | ||
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 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 ( | 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 (https://www.bcli.org/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 a will | ||
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* Make a beneficiary designation | * Make a beneficiary designation | ||
* Nominate a committee | * Nominate a committee | ||
* Enter | * Enter a contract | ||
* Retain legal counsel | * Retain legal counsel | ||
* Marry | * Marry | ||
* Form the intention to live separate and apart from a spouse | * Form the intention to live separate and apart from a spouse | ||
* Enter | * Enter 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. Just because someone lacks capacity in one regard does not mean that they necessarily lack capacity in another context. | 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. Just because someone lacks capacity in one regard does not mean that they necessarily lack capacity in another context. | ||
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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: since wills must follow formal requirements, suspicious circumstances may have bearing on the presumption of capacity, and undue influence may have bearing on the validity of a will.<br> | 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: since wills must follow formal requirements, suspicious circumstances may have bearing on the presumption of capacity, and undue influence may have bearing on the validity of a will.<br> | ||
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. | 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. | ||
== B. Capacity to Make an ''Inter Vivos'' gift == | == 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 from tests for capacity to enter 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 “incompetency” on the part of the person giving the gift. 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.<br> | 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 from tests for capacity to enter 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 “incompetency” on the part of the person giving the gift. 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.<br> | ||
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 | 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. | ||
== C. Capacity to Make a Beneficiary Designation == | == C. Capacity to Make a Beneficiary Designation == | ||
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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.<br> | 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.<br> | ||
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. | 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 capacity afterwards, lawyers have an obligation to ensure that the client’s interests are still properly represented. | ||
== G. Capacity to Marry == | == 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 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.<br> | 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 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 been 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.<br> | ||
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 | 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 effects of the marriage on their previous marriages and their children.<br> | ||
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. | 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. | ||
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No court in British Columbia, or in Canada for that matter, has ever directly engaged with the issue of whether a test for capacity to enter an unmarried spousal relationship is required. This does not mean, however, that capacity is irrelevant in these situations. 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 an unmarried spousal relationship is undefined—if it even exists at all. | No court in British Columbia, or in Canada for that matter, has ever directly engaged with the issue of whether a test for capacity to enter an unmarried spousal relationship is required. This does not mean, however, that capacity is irrelevant in these situations. 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 an unmarried spousal relationship is undefined—if it even exists at all. | ||
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