Legislation Will Clarify Test for Capacity to Make a Power of Attorney in B.C.

I wrote a post in December 2005 on the test for capacity to make a power of attorney in British Columbia. The case law is not clear on whether a person must be able to understand the extent of his or her property to meet the legal tests for capacity.

The Adult Guardianship and Planning Statutes Amendment Act, 2007, which was passed by the Legislative Assembly, but is not yet in force, will help clarify the tests for capacity to make a power of attorney in British Columbia.

Section 12 provides as follows:

12 (1) An adult may make an enduring power of attorney unless the adult is incapable of understanding the nature and consequences of the proposed enduring
power of attorney.

(2) An adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney if the adult cannot understand all of the following:

(a) the property the adult has and its approximate value;

(b) the obligations the adult owes to his or her dependants;

(c) that the adult's attorney will be able to do on the adult's behalf anything in respect of the adult's financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney;

(d) that, unless the attorney manages the adult's business and property prudently, their value may decline;

(e) that the attorney might misuse the attorney's authority;

(f) that the adult may, if capable, revoke the enduring power of attorney;

(g) any other prescribed matter.

Although this legislation is not in effect as of the date of this post, these criteria are useful guidelines to consider when assessing whether someone does have the capacity to make a power of attorney.