Legal Tests of Capacity
Joanna K. Knowlton
Deputy Public Trustee of Manitoba
Capacity: What Does it
Mean?
• Black’s Law Dictionary:
A word having many
meanings, dependant on its
relationship to the subject
matter.
Capacity: What Does it
Mean?
• Ability
• An intelligent perception and
understanding of the dispositions made
of property
• Sound mind
• The attribute of persons which enables
them to perform civil or juristic acts
Capacity: What Does it
Mean?
Presumption of Capacity:
Adults are presumed to have
capacity to make decisions
for themselves
Capacity: What Does it
Mean?
Presumption of capacity is
rebuttable:
• Only where there is clear
evidence that the person lacks
the capacity to make the
decision for him/herself
Capacity: What Does it
Mean?
• Task Specific
– Incapacity in one area does not necessarily
mean incapacity in another;
– Statutes in Manitoba deal with this
differently:
• Mental Health Act;
• Vulnerable Persons Living with a Mental
Disability Act
Capacity: What Does it
Mean?
Level of understanding
necessary varies with the
complexity of the decision or
transaction in question
Capacity to Marry
The person has the capacity to
understand the nature of the
contract of marriage and the
duties and responsibilities it
creates
Capacity to Consent to
Medical Treatment
The Mental Health Act
Does the person understand:
• The condition for which treatment is
proposed;
• The nature and purpose of the treatment;
• The risks and benefits of undergoing the
treatment;
• The risks and benefits of not undergoing the
treatment.
Capacity to Consent to
Medical Treatment
Does the person’s mental
condition affect his /her ability
to appreciate the
consequences of making a
treatment decision?
Capacity to Consent to
Medical Treatment
General principles:
•
•
Capacity should be assessed at the
time the decision is required;
Even if a person has a committee,
may still retain capacity to consent
to treatment;
Capacity to Manage Property
and/or Personal Care
Mental Health Act
A physician must consider:
• The nature and severity of the person’s mental
condition;
• Effect of the mental condition on ability to manage
property and personal care;
• Nature of property and personal care requirements,
and any arrangements known that were made while
the person was competent;
• Whether or not decisions need to be made.
Capacity to Execute an
Enduring Power of Attorney
The Powers of Attorney Act
The donor must be mentally
competent to know and understand
the nature and effect of the
document.
Capacity to Execute a
Will
Common Law test:
Does the person:
-know what he or she owns and is leaving in the
will (the nature and extent of his/her bounty)?
- understand and appreciate the nature of
his/her obligations (who he/she would ordinarily
be expected to benefit under the will)?
-not suffer from any disorder or delusion that
might affect the disposition?
Capacity to Execute a
Will
• Might require a physician’s opinion as to
capacity
• Lawyer must also be satisfied of
capacity at the time of execution
• Lawyer must also consider whether
person is acting of his/her own volition
or whether there might have been
coersion
Capacity to Enter into a
Contract
A contract is voidable if:
• A party was incapable of understanding
the terms and consequences of the
contract; and
• The other party knew or ought to have
known of the incapacity
Capacity: Who
Decides?
• Physicians or other Health Care
providers through formal assessments
of capacity;
• Legal counsel when assisting a person
with a specific task;
• Third parties who are relying on the
actions of the person, or entering into a
contract with them.
Why is Capacity
Relevant?
• To determine whether a particular action or
decision is binding on the person;
• To determine whether a person was
incapable of making the decision in question
vs. making poor choices or decisions;
• To determine whether someone needs
assistance or a substitute decision maker for
some or all decisions.
Consequences of a
Finding of Incapacity
• Informal substitute decision making;
• Reliance on pre-existing enduring
power of attorney or health care
directive;
• Need for appointment of committee for
property and/or personal care;
• Appointment of Public Trustee as
committee as a last resort.
Procedure to Have Public Trustee
Appointed as Committee
• Assessment by physician;
• Completion by physician of Form 21
Certificate of Incapacity;
• Completion of Social History;
• Form 21 and Social History forwarded
to Chief Provincial Psychiatrist.
Procedure to Have Public Trustee
Appointed as Committee
• Chief Provincial Psychiatrist reviews material;
• May require further material;
• Gives notice to person, nearest relative and
proxy;
• Considers any objections received;
• May meet with interested parties, request
further information.
Procedure to Have Public Trustee
Appointed as Committee
Once Chief Provincial Psychiatrist is
satisfied that:
– person is incapable; and
– It is in his/her best interests to appoint
Public Trustee as committee
Public Trustee will be appointed as
committee for both property and personal
care
Contact Information
JOANNA K. KNOWLTON
Deputy Public Trustee
155 Carlton Street - Suite 500
Winnipeg MB R3C 5R9
(204) 945-2729 or
1-800-282-8069 (government switchboard)
email: jknowlton@gov.mb.ca
website: www.gov.mb.ca/justice/publictrustee