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!

The post Mental Capacity, Consent, and Guardianship in BC and Canada: Get your Legal Update at the 2017 Canadian Elder Law Conference first appeared on British Columbia Law Institute.

For example, the agenda proposes amending the Mental Health Act to provide that “a patient, who is the subject of a physician’s decision to involuntarily detain that patient, has the option of legal representation during the review proceeding.” This proposal, while aimed at a narrower target and supported by a different rationale, nevertheless has some similarity to a recommendation made by BCLI’s Common-Law Tests of Capacity Project Committee in 2013.

In its Report on Common-Law Tests of Capacity (PDF), the committee gave extended consideration to issues that may arise when a person with diminished capacity is the subject of a proceeding to determine whether that person has the mental capacity to make decisions on his or her behalf. A person in this situation may need the assistance of legal counsel, but may find it difficult obtain counsel’s support and assistance because of doubts about the person’s capacity to retain and instruct legal counsel. The committee described the issue in these terms.

A person whose mental capacity is at issue in a court proceeding can be in an anomalous position. The Supreme Court Civil Rules call for the appointment of a litigation guardian if the person lacks capacity to retain (and instruct) legal counsel. A person may be understandably reluctant to submit to this arrangement in proceedings that are meant to establish whether or not the person lacks mental capacity to perform some act. But it can be difficult for such a person to retain legal counsel. Despite some recognition that a person in these circumstances should be presumed to have the capacity to retain legal counsel, in practice legal counsel tend to shy away from accepting a retainer from a person whose mental capacity is in issue in a court proceeding. So such people can find themselves caught in a grey area in the law.

In response to this issue, the committee considered the following reforms:

In the committee’s view, this problem is especially acute in proceedings that may result in a substantial deprivation of a person’s liberty. Such proceedings arise under the Mental Health Act and the Patients Property Act. (And they will arise under the Adult Guardianship Act, once that act’s provisions on adult guardianship are brought into force, replacing the Patients Property Act.) The committee proposes adding to those three acts a provision modeled on a section found in Ontario’s Substitute Decisions Act, 1992. Such a provision would make it clear that a person in proceedings under those acts has the right to retain and instruct legal counsel. In addition to clarifying the law, this proposal would serve to empower individuals with diminished capacity and to enhance the broadly protective purposes of these acts.

Ultimately, the committee recommended:

British Columbia should amend the Adult Guardianship Act, the Health Care (Consent) and Care Facility (Admission) Act, the Mental Health Act, and the Patients Property Act to provide that if the capacity of a person is in issue in a proceeding under the act the person is deemed to have capacity to retain and instruct counsel for the purpose of representation in the proceeding.

To date, the committee’s recommendation has yet to be implemented.

The post A look back at recommendations on mental capacity and retaining legal counsel first appeared on British Columbia Law Institute.

BCLI staff lawyer Kevin Zakreski appeared on the program to discuss the current law on mental capacity and the project’s recommendations for reform.

The episode is available online on the Common Law Radio website and as a podcast at iTunes.

The post Common-Law Tests of Capacity Project featured on Common Law Radio first appeared on British Columbia Law Institute.

“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 report and two backgrounders summarizing its contents are available online.

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.

The post BCLI Calls for Reforms to Law of Mental Capacity first appeared on British Columbia Law Institute.

“We hope to hear from legal advisors and the general public on this important topic,” said committee chair Andrew MacKay, “which touches on issues that affect the daily lives of British Columbians.”

The consultation paper contains 31 proposals for reform on how tests of mental capacity operate when someone wants to make a will, to designate a beneficiary under an insurance policy or retirement plan, to make a gift, to nominate a committee, to enter into a contract, to retain legal counsel, to marry or enter into a spousal relationship, or to separate from a spouse.

The full consultation paper, a summary consultation, a response booklet, and a backgrounder, are all available online.

If you want your response to be considered by us as we prepare the final report for the Common-Law Tests of Capacity Project, then we must receive it by 15 June 2013.

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.

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

The post BCLI Asks for Public Input on Tests of Mental Capacity first appeared on British Columbia Law Institute.