legal tests of capacity joanna k. knowlton deputy public trustee of manitoba

Legal Tests of Capacity

Joanna K. Knowlton

Deputy Public Trustee of Manitoba

Capacity: What Does it Mean?

• Black’s Law Dictionary:

A word having many meanings, dependant on its relationship to the subject matter.


• Ability• An intelligent perception and

understanding of the dispositions made of property

• Sound mind• The attribute of persons which enables

them to perform civil or juristic acts


Presumption of Capacity:

Adults are presumed to have

capacity to make decisions for themselves


Presumption of capacity isrebuttable:

• Only where there is clear evidence that the person lacks the capacity to make the decision for him/herself


• Task Specific– Incapacity in one area does not necessarily

mean incapacity in another;– Statutes in Manitoba deal with this

differently:• Mental Health Act;• Vulnerable Persons Living with a Mental

Disability Act


Level of understanding necessary varies with the complexity of the decision or transaction in question

Capacity to Marry

The person has the capacity to understand the nature of the contract of marriage and the duties and responsibilities it creates

Capacity to Consent to Medical Treatment

The Mental Health Act

Does the person understand: • The condition for which treatment is proposed;• The nature and purpose of the treatment;• The risks and benefits of undergoing the

treatment;• The risks and benefits of not undergoing the

treatment.


Does the person’s mental condition affect his /her ability to appreciate the consequences of making a treatment decision?


General principles:

• Capacity should be assessed at the

time the decision is required;• Even if a person has a committee,

may still retain capacity to consent

to treatment;

Capacity to Manage Property and/or Personal Care

Mental Health ActA physician must consider: • The nature and severity of the person’s mental

condition;• Effect of the mental condition on ability to manage

property and personal care;• Nature of property and personal care requirements,

and any arrangements known that were made while the person was competent;

• Whether or not decisions need to be made.

Capacity to Execute an Enduring Power of Attorney

The Powers of Attorney Act

The donor must be mentally competent to know and understand the nature and effect of the document.

Capacity to Execute a Will

Common Law test: Does the person:

-know what he or she owns and is leaving in the will (the nature and extent of his/her bounty)? - understand and appreciate the nature of

his/her obligations (who he/she would ordinarily

be expected to benefit under the will)? -not suffer from any disorder or delusion that

might affect the disposition?

Capacity to Execute a Will

• Might require a physician’s opinion as to capacity

• Lawyer must also be satisfied of capacity at the time of execution

• Lawyer must also consider whether person is acting of his/her own volition or whether there might have been coersion

Capacity to Enter into a Contract

A contract is voidable if:

• A party was incapable of understanding the terms and consequences of the contract; and

• The other party knew or ought to have known of the incapacity

Capacity: Who Decides?

• Physicians or other Health Care providers through formal assessments of capacity;

• Legal counsel when assisting a person with a specific task;

• Third parties who are relying on the actions of the person, or entering into a contract with them.

Why is Capacity Relevant?

• To determine whether a particular action or decision is binding on the person;

• To determine whether a person was incapable of making the decision in question vs. making poor choices or decisions;

• To determine whether someone needs assistance or a substitute decision maker for some or all decisions.

Consequences of a Finding of Incapacity

• Informal substitute decision making;• Reliance on pre-existing enduring

power of attorney or health care directive;

• Need for appointment of committee for property and/or personal care;

• Appointment of Public Trustee as committee as a last resort.

Procedure to Have Public Trustee Appointed as Committee

• Assessment by physician;• Completion by physician of Form 21

Certificate of Incapacity;• Completion of Social History; • Form 21 and Social History forwarded

to Chief Provincial Psychiatrist.


• Chief Provincial Psychiatrist reviews material;• May require further material;• Gives notice to person, nearest relative and

proxy;• Considers any objections received;• May meet with interested parties, request

further information.


Once Chief Provincial Psychiatrist is

satisfied that:– person is incapable; and – It is in his/her best interests to appoint Public

Trustee as committee

Public Trustee will be appointed as

committee for both property and personal

care

Contact Information

JOANNA K. KNOWLTONDeputy Public Trustee

155 Carlton Street - Suite 500

Winnipeg MB R3C 5R9

(204) 945-2729 or

1-800-282-8069 (government switchboard)

email: [email protected]

website: www.gov.mb.ca/justice/publictrustee

legal tests of capacity joanna k. knowlton deputy public trustee of manitoba

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