British Columbia Law Institute Publishes Report on Common-Law Tests of Capacity

As set out in its press release yesterday,

In its just-published Report on Common-Law Tests of Capacity the British Columbia Law Institute is recommending several reforms to how the law determines whether a person has the mental capacity to carry out a given transaction and to some of the consequences that flow from a finding that a person lacks this mental capacity.  

“The common law generally does a good job of providing tools to assess mental capacity,” said committee chair Andrew MacKay, “but there are some areas that can be improved.”  

The report recommends that the BC legislature enact legislation to make a series of improvements to the law. It calls for the creation of a procedure that would allow a judge to assist a person who lacks testamentary capacity to make a valid will. It proposes the enactment of statutory tests of capacity to determine when a person can make a valid gift and a valid nomination of committee. It also recommends amending several statutes to enhance access to justice for a person whose mental capacity is at issue in a proceeding.

The report summarizes the law of capacity in British Columbia for a wide range of legal matters, including making a will; making a gift; making a beneficiary designation, nominating a committee (adult guardian), entering into a contract, hiring a lawyer, marrying, forming an intent to live separate and apart from a spouse, entering a common-law relationship. The report includes an in depth analysis of the rationals for the differing legal tests, and considers options for reform. In many instances, the report recommends retention of the common-law tests, but as noted in the press release contains some significant recommendations for changes including a statutory will-making power and statutory provisions setting out the tests for capacity to make a gift. I have written about the proposed changes in my post on the Consultation Report here.

I recommend reading the full report here.