BCLI Project Committee to Study Common-Law Tests of Capacity
December 19, 2011
BY Alison Taylor
New 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
19 December 2011—Mental disability, illness, or impairment 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 is concerned with the degree of a person’s mental disability, illness, or impairment. If it exceeds in a 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 transactions or relationships. Some of these tests appear in statutes. In fact, over the past 20 years British Columbia has seen a concerted effort to modernize its legislation dealing with mental capacity in some areas of the law. This province now has sophisticated rules on the mental capacity required to give an enduring power of attorney and to make health-care decisions.
But many areas of the law continue to rely on older common-law tests of capacity. Common-law tests of capacity are prominent in wills-and-estates law, contract law, and family law. To find the guiding tests of capacity in these areas of the law, a person often has to trace rules through a series of court decisions to find a definitive statement in a nineteenth-century English judgment. And that statement is usually marked by the social conditions and scientific understanding of that time. So the common-law tests of capacity may not always be current with contemporary social developments and advances in neuroscience.
The BCLI is pleased to be working with an expert volunteer committee to study how common-law tests of capacity can be made more modern and responsive to the needs of contemporary British Columbians. To learn more about the project click here, and to read about the members of the project committee click here. The Law Foundation of British Columbia and the Notary Foundation of British Columbia have generously provided support for this project.