Canada: Compulsory Capacity Assessments In British Columbia

Last Updated: April 29 2015
Article by Areet Kaila

Remarkable advancements in medical care over the past decades have significantly increased the life expectancy of Canadians. However, with this increase in longevity come the challenges of declining cognitive functions due to dementia and other age related disorders. Cognitive decline may compromise an adult's ability to make decisions about their personal, medical, financial, or legal affairs, and may even make individuals vulnerable to mistreatment and manipulation. The challenge facing our society is determining the appropriate balance between protecting loved ones from these vulnerabilities, while at the same time promoting personal autonomy and dignity. The difficulty associated with striking the right balance is apparent when we examine BC's adult guardianship legislation.

Adult Guardianship Legislation

In British Columbia, if there are concerns regarding an individual's capacity, an application may be brought under s. 3 of the Patients Property Act1 (the "PPA") for a declaration that the individual is no longer capable of managing his or her affairs and the appointment of a "committee". A committee refers to an adult guardian appointed by the British Columbia Supreme Court to make personal, legal, or financial decisions for an individual who is mentally incapable and cannot make those decisions because of (a) mental infirmity arising from disease, age or otherwise, or (b) disorder or disability of the mind arising from the use of drugs. There are two types of committees: committees of the person and committees of the estate. The former has the authority to make personal and medical decisions on behalf of the incompetent adult, including decisions about where the adult will live, whereas the latter has the authority to make financial and legal decisions for the incompetent adult. A family member, close friend, trust company or the Public Guardian and Trustee (the "PGT") may be appointed as committees. While an individual and the PGT may be appointed as either a committee of the person or of the estate, or both, a corporate committee may only serve as a committee of the estate.

Free choice and freedom from coercive interference with an individual's physical and mental autonomy are core values of our society and principles protected by the Canadian Charter of Rights and Freedoms. Accordingly, adults are presumed to have capacity until proven otherwise.2 To rebut this presumption of capacity, a committeeship application must be accompanied by a minimum of two medical affidavits setting out a medical opinion that the person who is the subject of the application is incapable of managing his or her affairs and/or incapable of managing himself or herself.3 This can be difficult when the allegedly incompetent adult actively resists being assessed for the purpose of determining capacity. Although the PGT has statutory authority to request a mental capacity assessment when there are concerns that an adult may be incapable of managing his or her affairs, if the family does not wish to involve the PGT, or the PGT does not consider the case appropriate to act, the family is left with no statutory recourse.4

A Legislative Gap

The legislation provides no protection for individuals who appear to be incapable but who refuse to attend the required medical examinations. There is also no statutory authority in British Columbia for court ordered capacity assessments before two medical affidavits have been produced.5 However, proposed changes to BC's adult guardianship legislation will provide a mechanism by which an allegedly incompetent adult may be ordered to attend a capacity assessment where there (1) is reason to believe that the adult is incapable of making decisions about his or her personal care or health care, or of managing his or her financial affairs, (2) the appointment of a guardian will be sought, and (3) the adult is refusing to be assessed.6

Although introduced in 2007, these proposed changes have not yet been enacted and it is uncertain when they will become law. The delay may be partly due to the fact that not everyone welcomes court imposed capacity assessments, which have been described as "intrusive", "demeaning" and a "substantial intervention into the privacy and security of the individual".7 In provinces where court ordered capacity assessments are available (for example, Alberta and Ontario), this jurisdiction is exercised cautiously and sparingly.

Recently, British Columbia courts have recognized that the absence of statutory authority to order capacity assessments leaves a legislative gap that is particularly acute if the adult's refusal to undergo the medical examinations is due to the adult's apparent incapability.8 In Temoin v. Martin, the BC Court of Appeal has attempted to fill this gap using the court's parens patriae jurisdiction. Although this important decision was rendered in 2012, it has generated little legal commentary since then. However, as there is little indication of when, if ever, the legislative changes discussed above will become law, it is worth revisiting the Temoin decision and its relevance to committeeship applications.

Filling the Void in British Columbia: Temoin v. Martin

In Temoin, the applicant sought a declaration that her father, Mr. Martin, was incapable of managing himself and his affairs and for the appointment of a committee over his person and estate. Ms. Temoin, Mr. Martin's daughter from his first marriage, became concerned about her father's mental capacity after learning that he had changed his estate plan in favour of his second wife and her children. As Mr. Martin refused to submit to medical assessments for the purpose of determining his capacity to manage his financial affairs, Ms. Temoin sought an order that her father attend such examinations in order to provide the evidence necessary for the committeeship application. Ms. Temoin conceded that there was no judicial or statutory authority enabling the Court to grant such an order; however, she argued that the Court could rely on its parens patriae jurisdiction to compel Mr. Martin to attend a medical capacity assessment.

The Court's parens patriae jurisdiction (which literally means "parent of the country") is founded on necessity and the protection of vulnerable individuals who cannot care for themselves and must be exercised in the "best interest" of the protected individual.9 This protective jurisdiction can only be exercised where there is a gap in the legislative framework that provides for the protection of vulnerable individuals. In Temoin, the Court held that the parens patriae jurisdiction may indeed be invoked to fill the legislative gap of the PPA for the limited purpose of bringing an individual within the procedural safeguards of the legislation. The Court held that an order compelling an individual to attend a capacity assessment in order to obtain the necessary evidence for a committeeship application may be granted where there is (1) prima facie evidence of the adult's incompetence and (2) a compelling need for protection.10

The Court's power to order capacity assessments is discretionary – there is no one evidentiary standard to be met on such applications. However, by requiring prima facie evidence of incompetence the Court has set a high evidentiary threshold. Essentially, the applicant must provide evidence of incompetence that will prevail until contradicted and overcome by evidence of capacity.

In Temoin, the Court found that Ms. Temoin failed to show sufficient evidence of Mr. Martin's incompetence or need for protection. Ms. Temoin had relied heavily on a medical assessment pursuant to which Mr. Martin had been found to lack testamentary capacity. However, there was little additional evidence that he was incapable of managing his affairs and in need of the Court's protection and there was conflicting evidence regarding his ability to make financial decisions.11While his daughter did not agree with his estate planning decisions, Mr. Martin's had retained appropriate consultants to assist him in managing his business and financial affairs and his actions were not improvident.

Furthermore, the Court expressed concerns that the true motivation for Ms. Temoin's application was the validity of her father's revised will and estate plan, rather than his ability to manage himself and his financial affairs. The Court declined to make an order which would most likely bolster Ms. Temoin's efforts to attack her father's new will for her personal advantage, rather than protect Mr. Martin's interests.

Future Applications for Court Ordered Capacity Assessments

Court ordered capacity assessments infringe upon an individuals' personal autonomy and will only be ordered where there is clear prima facie evidence of incompetence. Based on the Court's reasoning in Temoin, as well as jurisprudence developed in those provinces where adult guardianship legislation provides for court ordered capacity assessments, the following factors will likely be considered in determining the success of such applications in British Columbia:12

  • the nature and quality of the non-medical evidence regarding the adult's capacity, including the adult's behaviour, personality changes, susceptibility to undue influence or exploitation;
  • whether the adult has approved unusual or improvident dispositions of property;
  • the nature and quality of the medical evidence before the court regarding the adult's capacity and whether the medical evidence specifically addresses the adult's ability to manage his or her financial and personal affairs;
  • if there has been a previous assessment of any kind, the court will have regard to the comprehensiveness of the report and the conclusions reached as they pertain to the adult's ability to manage his or her affairs;
  • evidence of the adult's testamentary capacity (while not determinative of the application, such evidence is relevant to assessing the adult's prima facie incompetence);
  • the wishes of the person sought to be examined, taking into account the evidence concerning his or her capacity;
  • the probative value of an assessment to the adjudication of the issues before the court and any future proceedings involving the adult's estate;
  • whether any harm may result if a medical assessment does not take place;
  • whether any urgency exists to perform a capacity assessment; and
  • the underlying motive of the applicant and whether the applicant stands to benefit in any way from a finding of incapacity.13


1 While the threshold for obtaining a court ordered capacity assessment is high, the Temoin decision confirms that such an order may be obtained by family members of an allegedly incompetent adult in appropriate circumstances. Given our aging population, we will undoubtedly see increased reliance on this decision.

2 R.S.B.C. 1996, ch. 349

3 Adult Guardianship Act, R.S.B.C. 1996, ch. 6, s. 3

4 PPA s. 3(1)(b)

5 See Part 2.1 of the Adult Guardianship Act, R.S.B.C. 1996, ch. 6.

6 Temoin v. Martin, 2012 BCCA 250 at para 48.

7 Adult Guardianship and Planning Statutes Amendment Act, 2007, S.B.C. 2007, c. 34

8 Abrams v. Abrams, [2008] O.J. No. 5207 (Ont. S.C.J.) at para. 50 ["Abrams"].

9 Temoin, supra note 5at para. 51.

E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388

10 Temoin, supra note 5 at para. 61.

11 Ibid at para. 72.

12 Abrams, supra note 7; Kischer v. Kischer, [2009] O.J. No. 96 ["Kischer"]; Urbisci v. Urbisci, 2010 ONSC 6130

13 In Kischer, Justice Strathy of the Ontario Superior Court of Justice noted that the court will be desirous of the evidence of at least one disinterested person, in addition to the applicant, who is familiar with the condition of the elderly adult. However, the evidence of a disinterested party is not determinative of the application, as Justice Strathy recognized that such evidence may not always be practical.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions