The law presumes that an adult is capable. Section 3(1) of
the Adult Guardianship Act, R.S.B.C. 1996, c.6
3(1) Until the contrary is demonstrated, every adult is presumed
to be capable of making decisions about the adult's personal
care, health care and financial affairs.
In British Columbia, the Patients Property Act,
R.S.B.C. 1996, c.349 sets out the procedure to obtain a declaration
of incapability and appointment of Committee of an incapable
As set out in section 3 of the Patients Property Act,
to obtain a declaration of incapability, there must be:
an application to the court; and
two affidavits of medical practitioners setting out the opinion
that the person is because of mental infirmity incapable of
managing himself or herself or his or her affairs.
What happens if the two affidavits from medical practitioners
cannot be obtained because the person who is the subject of the
application will not attend for any medical examination as to
The only provision in the Patients Property Act
allowing the Court to order medical examinations is section
5. Section 5 provides that if an application is made or an
appeal is taken from an order under section 3, the Court may order
the person who is the subject of the application to attend an
examination by one or more medical practitioners other than those
whose affidavits were submitted with the application or a board of
three or more medical practitioners designated by the College of
Physicians and Surgeons of British Columbia, at the request of the
Court. The problem is that one cannot get to section 5
without first producing to the Court the two affidavits of medical
practitioners as required under section 3.
In other words, there is no statutory authority for the Court to
order that a person be assessed under the Act so as to
bring an application for incapability under section 3. This,
as found in Temoins v. Martin, 2012 BCCA 250, presents a
legislative gap in the Act because it does not offer
protection for an adult who appears to be incompetent but refuses
to undergo medical assessments. Accordingly, in
Temoins, the Court of Appeal (affirming the lower
court's decision) held that this legislative gap entitled the
Court to consider whether to order a medication assessment under
its inherent jurisdiction or parens patriae
Given the presumption of capacity, is forcing a person to
undergo a medical assessment for the purpose of establishing
incapacity taking the parens patriae jurisdiction too
far? The Court of Appeal in Temoins did not think
so, given the court's broad powers under the parens
partriae jurisdiction. However, the Court of Appeal
expressly stated that this power should be "exercised
cautiously" and before this power is exercised, there should
be evidence both as to incapacity and the need for protection of
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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