Mental Capacity, Consent, and Guardianship in BC and Canada: Get your Legal Update at the 2017 Canadian Elder Law Conference

2 October 2017

By Krista James

Does your practice deal with mental capacity, consent or guardianship? If so, this year’s elder law conference is shaping up to be the event of the season for getting your update on the law.

For some of you, consent and capacity are intrinsic to the bulk of your work. If you prepare powers of attorney, wills, trusts or representation agreements you need to be sure your client has the cognitive ability to understand the relevant documents and their impacts. However, ultimately, you cannot prepare any agreement for a client in a corporate, estate or family context unless you know the client has the capacity to understand the agreement. In this sense knowledge of mental capacity is fundamental to every lawyer and notary’s practice.

Does the client have the capacity to create a will, consent to admission to a care facility, or get married? The law is in this area is complex, and there is no single global legal test of capacity. As discussed in the 2013 report of the BC Law Institute, Rationalization and Harmonization of BC Common Tests of Capacity, the law has developed many different tests of capacity, each geared to specific types of transactions or relationships. Some tests have been enshrined in a statute; others have been developed or refined over the years by the judiciary. Further, some relevant legislation is just coming into force in 2018: the BC government recently announced the implementation of the consent and substitute decision-making provisions that will apply specifically to admission to care facilities in BC.

This year’s conference features many panels to support practice in the confusing areas of consent and capacity. We highlight a number of them in this blog post.


Capacity Standards and Consent

In her keynote address, BC Seniors Advocate Isobel Mackenzie will explore consent to health care treatment and care facility admission. She will consider consent to treatment under the new care facility admission provisions, comparing the mental health and long-term contexts to pose thought-provoking questions about what kind of what rights the law grants older adults in BC. Does the law reflect an ageist attitude toward consent and capacity?

Emily Clough will be looking at capacity to marry. She will review the history of the common-law test, offer comparisons to other jurisdictions in Canada, and consider potential changes to the test. Her talk will address both when a marriage might be void for mental capacity and other remedies that might be available in the estate context, such as those grounded in the doctrines of undue influence and suspicious circumstances.

Mental health law is a very specialized practice; however, in the context of self-neglect, dementia and/or mental illness, it can intersect with elder law. This year we offer an exciting interdisciplinary panel featuring geriatric psychiatrist Dr. Heather D’Oyley, Vancouver Coastal; Health Re: Act Adult Protection Program Director Amanda Brown, and Community Legal Assistance Society Lawyer, Laura Johnstone. The panel will work through factual scenarios to explore when either the Mental Health Act or the Adult Guardianship Act might apply in contexts of illness and self-neglect, and what kinds of interventions are possible under each regime where there are concerns over whether a person may be living at risk and not have capacity to make her own decisions.

Finally, access to medically assisted death raises issues around capacity to consent to treatment. The new federal legislation builds in a requirement of timely informed consent. The question of equality of access across disability raises issues about whether people living with degenerative diseases that impact cognition and communication should be permitted to consent in advance to medically assisted death. Jay Aubrey from the BC Civil Liberties Association, Graham Webb from the Advocacy Centre for the Elderly in Toronto, and Marie Howard of the Alzheimer Society of BC will be exploring the pros and cons of opening up access via advance consent in their panel.


Substitute and Supportive Decision Making

Thompson Rivers University law professor Margaret Hall will present early findings from her research study examining implementation and awareness of BC’s Adult Guardianship Act, which compares practice in two different geographic regions in BC (coastal and interior). Much guardianship practice happens outside of the courtroom and is not documented in jurisprudence, and so her presentation will offer a unique opportunity for knowledge of what practice is like on the ground.

The Executive Director of the Law Commission of Ontario, Nye Thomas, will be here to discuss lessons learned from their comprehensive, multi-year law reform project on Legal Capacity, Decision-making and Guardianship. The report, which was just published in March of this year, contains a range of recommendations addressing health care, guardianship, powers of attorney, human rights, capacity assessment, dispute resolution, legal aid, regulation of professional substitute decision makers, and public legal education. BCLI Executive Director Kathleen Cunningham will moderate the discussion to help identify potential areas for law reform in BC.

Supported decision making is an alternative to substitute decision-making that is available to some adults with reduced capacity who have people in their lives whom they trust and can turn to for support. In BC, the Representation Agreement Act provides legal recognition to supported decision-making relationships. In her presentation CCEL staff lawyer Laura Tamblyn Watts will provide an introduction to the concept of supported decision-making, discuss ethical issues related to fiduciary duty, concerns around undue influence and elder abuse, and explore the potential for using supported decision-making in an investment context to allow people with reduced capacity to take greater leadership in determining their financial futures. This presentation forms part of the CCEL current project on Inclusive Investing: Respecting the Rights of Vulnerable Investors through Supported Decision Making.

We are thrilled to have a special conference presenter coming to us all the way from New South Wales to share their experiences with managing their guardianship regime through a tribunal system, as an alternative to using the court system as we do in BC. Malcolm Schyvens, Division Head – Guardianship Division, NSW Civil and Administrative Tribunal, will provide an overview of the Australian guardianship landscape, including the role of tribunals.


Practical Tips to Support Practice in Challenging Circumstances

Mental capacity issues give rise to numerous ethical and practical challenges for lawyers, notaries, and other professionals. A number of panels are designed to offer strategic, practical advice to seasoned and more junior practitioners.

Sara Beheshti, Kimberly Whaley and Stanley Rule will explore the intersecting issues of capacity, undue influence, and independent legal advice to support lawyers and notaries to appreciate:

  • the surrounding circumstances that a lawyer should be mindful of
  • how to conduct interviews to elicit key relevant information
  • what is required to rebut presumptions of undue influence and/or establish capacity
  • when to act / not act for older clients on a joint retainer
  • when to insist on independent legal advice (ILA)
  • the standard of care in providing ILA

in the wake of the BC Wills, Estates and Succession Act harmonizing the rules concerning the onus of proof in cases of undue influence affecting wills with the rules that apply to undue influence affecting gifts made during life, knowledge of this topic is essential for BC lawyers and notaries who develop wills for clients; however, the underlying concepts apply to estates practitioners working across Canada.

A second interdisciplinary penal will offer practical tips to support lawyers confronted with isolated, lonely, neglected or self-neglecting older adults who may require more support than fits within the confines of a legal practice. Law Society Practice Advisor Barbara Buchanan will discuss a lawyer’s ethical obligations when suspecting neglect or self-neglect, including the ability to represent an adult with reduced capacity, as well as how far a lawyer should go in offering assistance. In other words, when does a lawyer’s assistance extend beyond the practice of law? Alison Leaney from the Public Guardian and Trustee of BC will introduce various support agencies to which a lawyer can refer a client or other older person who requires support or assistance that is outside their scope of practice or skills. Mediator and lawyer Joan Braun will offer guidance in terms of what kinds of questions to explore when concerned about an older person who is lonely or isolated, experiencing neglect or self-neglect, or is at risk of either.  These circumstances trigger our compassion and we need to be sufficiently clear on our proper roles, and aware of relevant resources, in order to respond in a way that is truly helpful.

For new lawyers, notaries, social workers and healthcare practitioners this year’s Canadian Elder Law Conference is mental capacity and consent 101. For the seasoned professional, the conference provides a timely update on a complex and dynamic area of law. We look forward to seeing you there!

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