News/Events The British Columbia Law Institute is embarking on a two-year project to consider reforms to judge-made rules governing when a person is determined to have the mental capacity to carry out a transaction or enter into a relationship.
“Both the aging of society and advances in neuroscience have made a re-examination of the common-law tests of capacity imperative,” said committee chair Andrew MacKay. “I’m looking forward to working with the BCLI and a project committee made up of some of the leading lights in the field to study how the law can better suit the needs of contemporary British Columbians.”
The members of the project committee are:
Andrew MacKay -- Chair | R.C. (Tino) Di Bella Jawl & Bundon |
| Russell Getz Ministry of Attorney General for British Columbia | Kimberly Kuntz |
Roger Lee | Barbara Lindsay |
| Catherine Romanko Public Guardian and Trustee of British Columbia | Laurie Salvador |
Jack Styan | Geoffrey White Geoffrey W. White Law Corporation |
This project has been made possible by grants from the Law Foundation of British Columbia and the Notary Foundation of British Columbia.
Two backgrounders providing further details on the project committee and on the legal issues to be considered in the project are available at www.bcli.org.
The British Columbia Law Institute strives to be a leader in law reform by carrying out the best in scholarly law-reform research and writing and the best in outreach relating to law reform.
To view the project page for the Common-Law Tests of Capacity Project Committee, click here.
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Contact: Kevin Zakreski
Staff Lawyer
(604) 827-5336
kzakreski@bcli.org
The British Columbia Law Institute is very pleased that the new Family Law Act (Bill 16) introduced yesterday in the Legislative Assembly will implement recommendations for changes to family law contained in four of its reports.
“We are gratified that the government has clearly accepted the cogent and timely recommendations in these four reports by British Columbia’s independent law reform agency, and is proposing to enact them in this major legislative initiative,” said Jim Emmerton, executive director of BCLI.
The four reports that are reflected among the sweeping changes that the Family Law Act will make are:
The British Columbia Law Institute strives to be a leader in law reform by carrying out the best in scholarly law reform research and writing and the best in outreach relating to law reform.
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Contact: Jim Emmerton
Executive Director
(604) 822-0142
bcli@bcli.org
The British Columbia Law Institute is seeking volunteers to serve on its common-law capacity project committee. If you are interested in serving on the committee, please send us your expression of interest (including curriculum vitae) by 31 October 2011. If you want some more information about the project and the BCLI’s expectations of committee members, please read the background and FAQ that follow.
Background on the project
The British Columbia Law Institute is about to commence a large-scale project to study common-law tests of mental capacity. It is basic law that mental disability or illness does not, in and of itself, leave a person incapable under the law to carry out transactions, enter into relationships, or manage his or her affairs. The law’s focus is on the degree of mental disability or illness. If a person’s mental illness or disability exceeds in degree a legal threshold, then that person will be considered incapable in the eyes of the law. This legal threshold is commonly called a test of capacity.
There is no single, global test of capacity. Instead, the law has developed many different tests of capacity, each geared to specific types of transactions or relationships. Over the past 20 years, British Columbian and Canadian law has seen significant development of legislation relating to mental capacity, which has yielded modern and sophisticated rules on when a person is mentally competent to perform certain tasks or enter into certain transactions. But many areas of the law continue to rely on older common-law tests of capacity, which hold sway in contract law, wills-and-estates law, and family law, among other areas. This project’s goals are to study and illuminate selected common-law tests of capacity, to determine where the current law has shortcomings that require modernization or harmonization, and to recommend legislative reforms to address those shortcomings.
FAQ
How long is the project?
The project will last for two years. Under the terms of grants the BCLI has received to carry out the project, it must be completed by 31 September 2013.
What are committee members expected to do?
The primary expectation of committee members is to participate in committee meetings. Committee meetings typically involve considering the how the current law addresses a given legal issue and the policy underlying proposals to reform the law. The goal of these discussions is to arrive at recommendations for the reform of the law.
How long are committee meetings and how often are they held?
Committee meetings are typically two hours long. They are usually held once a month over the life of the project (for example, 4:00 p.m. to 6:00 p.m. on the last Tuesday of the month). Meetings may be somewhat longer or more frequent if needed to review publications to be issued in the project and may be less frequent during the consultation period for the project.
Do committee members have to do any independent research or writing?
No. The responsibility for drafting research materials and the publications issued over the course of the project rests with BCLI staff. Committee members are only asked to bring their expertise to bear in reviewing and commenting on these documents.
Do committee members have to be lawyers?
No. It is only necessary to have an interest in legal issues and legal policy.
Can committee members obtain CPD credit for attending meetings?
Yes. The Law Society of British Columbia has certified the project as group study for the purposes of its continuing professional education program. Committee members can claim CPD credits for the actual time they spend in committee meetings. Under law society rules time spent preparing for meetings is not eligible for CPD credits.
Who can I contact for more information?
Kevin Zakreski
Staff Lawyer
British Columbia Law Institute
(604) 827-5336
kzakreski@bcli.org
Date: 3 October 2011 at 2:00 pm
Location: Room 121, Allard Hall
University of British Columbia
1822 East Mall
Vancouver, BC V6T 1Z1
Title: Elder Law Downunder, the Old and the New
Sue Field is the inaugural New South Wales Trustee and Guardian Fellow in Elder Law at the University of Western Sydney.
Her work involves research, training, education and consultancies in the emerging speciality of Elder Law, including subject areas such as substitute decision-making, guardianship, financial abuse and financial issues associated with aging, estate disputes, and grandparents’ rights.
Ms. Field will be speaking on her experience teaching elder law in Australia, how the undergraduate subject is taught in the faculty of law, why it is so popular, and the consultancies on elder law issues that bring money into the institution. The presentation will also touch on Professor Field’s current research projects, including the Elder Law Review (Australia’s only journal dedicated to elder law), and identify current legal issues affecting older persons and what is being done, and not being done, to address them.
The lecture will be followed by an open house at the new offices of the British Columbia Law Institute and the Canadian Centre for Elder Law, Room 321 Allard Hall.
Refreshments and light snacks will be provided.
Date: 3 October 2011 at 2:00 pm
Location: Room 121, Allard Hall
University of British Columbia
1822 East Mall
Vancouver, BC V6T 1Z1
Lecture Title: Elder Law Downunder, the Old and the New
Sue Field is the inaugural New South Wales Trustee and Guardian Fellow in Elder Law at the University of Western Sydney.
Her work involves research, training, education and consultancies in the emerging speciality of Elder Law, including subject areas such as substitute decision-making, guardianship, financial abuse and financial issues associated with aging, estate disputes, and grandparents’ rights.
Ms. Field will be speaking on her experience teaching elder law in Australia, how the undergraduate subject is taught in the faculty of law, why it is so popular, and the consultancies on elder law issues that bring money into the institution. The presentation will also touch on Professor Field’s current research projects, including the Elder Law Review (Australia’s only journal dedicated to elder law), and identify current legal issues affecting older persons and what is being done, and not being done, to address them.
The lecture will be followed by an open house at the new offices of the British Columbia Law Institute and the Canadian Centre for Elder Law, Room 321 Allard Hall.
Refreshments and light snacks will be provided.
The British Columbia Law Institute has published today its Report on Proposals for Unfair Contracts Relief. The report recommends that British Columbia enact a Contract Fairness Act to consolidate and modernize the leading concepts that contract law deploys against contractual unfairness.
“The current law on contractual unfairness is largely found in court cases and this body of precedent contains needless complexities, gaps, and uncertainties,” noted committee chair Prof. Joost Blom, QC. “The time is ripe to address these issues and make the law more certain and accessible by enacting legislation.”
The proposed Contract Fairness Act will clarify vexing ambiguities in the application of unconscionability, duress, and undue influence, create a framework for integrating those concepts, provide for a duty of good faith in the performance of contracts and supply a definition of “good faith,” and address concerns about remedies for misrepresentation.
The Report on Proposals for Unfair Contracts Relief is the culmination of a major, two-year law-reform project that has been generously funded by the Law Foundation of British Columbia.
Copies of the report and two backgrounders summarizing its contents and main arguments are all available for downloading at no charge on the Unfair Contracts Relief project page..
The British Columbia Law Institute strives to be a leader in law reform by carrying out the best in scholarly law-reform research and writing and the best in outreach relating to law reform.
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Contact: Kevin Zakreski
Staff Lawyer
(604) 827-5336
kzakreski@bcli.org
On September 1, 2011, new legislation about planning for future incapacity came into effect in the province of British Columbia. The new legislation provides options for personal, health and financial planning, and introduces requirements for enduring powers of attorney, representation agreements and advance directives. It’s Your Choice, Personal Planning Tools, published by the Public Guardian and Trustee (PGT), provides helpful guidance for each of these planning documents.
Further information about the changes is available on the following websites:
http://www.trustee.bc.ca/services/adult/personal_planning_tools.html
http://www.ag.gov.bc.ca/incapacity-planning/
http://www.health.gov.bc.ca/hcc/advance-care-planning.html
http://www.courthouselibrary.ca/research/BCProclamations.aspx
http://www.nidus.ca/
On September 1, 2011, new legislation about planning for future incapacity came into effect in the province of British Columbia. The new legislation provides options for personal, health and financial planning, and introduces requirements for enduring powers of attorney, representation agreements and advance directives. It’s Your Choice, Personal Planning Tools, published by the Public Guardian and Trustee (PGT), provides helpful guidance for each of these planning documents.
Further information about the changes is available on the following websites:
http://www.trustee.bc.ca/services/adult/personal_planning_tools.html
http://www.ag.gov.bc.ca/incapacity-planning/
http://www.health.gov.bc.ca/hcc/advance-care-planning.html
http://www.courthouselibrary.ca/research/BCProclamations.aspx
http://www.nidus.ca/
BC CEAS is hiring a new Executive Director/ Managing Lawyer for the Elder Law Clinic. Go to the BC CEAS website for further details.
The British Columbia Law Institute has issued four new consultation papers in connection with Phase 2 of its Real Property Reform Project. One deals with restrictive covenants and the other three deal with various aspects of co-ownership of land.
“Restrictive covenants and some matters relating to co-ownership figure prominently among the areas in real property law that are overdue for modernization. The reforms proposed in these consultation papers would benefit all owners of land, both residential and commercial,” said Dr. A.J. (Bertie) McClean, Q.C., Chair of the Project Committee.
The Consultation Paper on Restrictive Covenants deals with one of the most complex and ob-scure areas of real property law, namely obligations that “run with land” so as to affect succes-sive owners. Currently the only obligations that run with land (apart from limited statutory ex-ceptions) are ones that restrict use or occupation, such as a restriction prohibiting non-residential use of land. Among other reforms, the consultation paper proposes that cost-sharing or repair and maintenance obligations be allowed to run with land. An example would be a covenant between neighbouring landowners to contribute towards maintaining a fence or a common access driveway.
The Consultation Paper on Joint Tenancy urges reform of the law surrounding severance of joint tenancies, among many other proposals. As the law now stands, if spouses own their home as joint tenants, Spouse A can “sever” joint tenancy without the knowledge of Spouse B. If Spouse A dies first, Spouse B would not receive the interest of Spouse A in the house. The consultation paper proposes that a joint tenant wishing to sever must give notice to the other joint tenant.
The Consultation Paper on the Partition of Property Act proposes replacement of the Act, which is based on English legislation originally passed in 1868 and has undergone little change since then. Among the features proposed for a new Act would be a right of first refusal to always give the other co-owners the first opportunity to buy out a co-owner who obtains a court-ordered sale of the land.
The Consultation Paper on Accounting and Contribution Between Co-Owners of Land proposes reforms to deal with financial aspects of co-ownership, including cost-sharing and the collection of rents and profits from land.
The Real Property Reform Project (Phase 2) is generously funded by the Law Foundation, the Notary Foundation, and the Real Estate Foundation. The project is carried out with the aid of a 12-member committee consisting of volunteers from the real estate Bar, the notarial profes-sion, and industry.
The consultation papers are issued to obtain comment on proposals for law reform before the final recommendations are made. They can be downloaded from the B.C. Law Reform Group page of the BCLI website here.
Responses to the consultation papers are requested by September 1, 2011.
