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 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
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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