BCLI Calls for Reforms to Law of Mental Capacity
September 24, 2013
BY Kevin Zakreski
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 Common-Law Tests of Capacity Project has been made possible by grants from the Law Foundation of British Columbia and the Notary Foundation of British Columbia.