A director of a provincial mental health facility in British Columbia may issue a Certificate of Incapability on finding that someone is incapable of managing his or her affairs. When a Certificate is issued, that person no longer has the legal right to make his or her own financial decisions. The Public Guardian and Trustee then takes over that person's financial affairs.
On the one hand, Certificates of Incapability are draconian. On the other, they may be necessary to protect a person who has significantly diminished mental capacity.
The practice guidelines set out the following guiding principles for certifications:
Incapability assessments are undertaken only as a last resort.
An adult has the right to be informed of the intention to conduct an incapability assessment and to be provided with the outcome of the assessment. Only in cases where this information would be injurious to the adult, is this information withheld.
Incapability assessments are unnecessary if there are alternate ways of adequately meeting the adult’s needs.
Incapability assessments are undertaken only if the assessment will serve the interests of the adult.
Incapability assessments begin with the presumption that the adult is capable of making decisions.
An incapability assessment is a process, conducted by a team, in consultation with the adult and those who are supportive of the adult.
Incapability assessments are concerned solely with the adult’s ability to manage their financial and legal affairs.
Incapability assessments are conducted fairly, and demonstrate respect for the adult.
Incapability assessors respect and protect the adult’s privacy, self-esteem and well being.
A determination of incapability does not automatically mean a Certificate of Incapability should be issued.
A Certificate of Incapability is only issued as a last resort when the adult needs the Public Guardian and Trustee, as Committee of Estate, to protect and manage his or her financial and legal affairs.