Roger writing the LAWmag

Capacity: The Incredible Likeness of Being

capacity scrawlingsTO BE OR NOT TO BE a famous English bard once wrote although hearing my sixteen year old wannabe-lawyer daughter tell it, we really don't know who wrote Shakespeare's plays now do we?!

The reality or not of Shakespeare - and then of his alleged ghost-writer - pales in comparison to the reality of a person's capacity to manage his or her affairs where the question is:

Is she her or is she not her?

Often assigned to elder law, these issues can just as readily affect a younger person with a brain injury, MS or some such other mentally disabling disease that tramples over age barriers.

It used to be that capacity was always presented against a specific legal test. But the old but simple recipe has since been rewritten several times first by the mother of all common law, the British courts, but, increasingly, the courts in the United States and other common law jurisdictions.

In the common law, capacity is presumed; this, since 1814, Wellesley v Vere. But the presumption can be readily displaced.

Elsewhere in the wilderness of the common law, the capacity to enter into a power of attorney is the same as that required to enter into a contract.

Further, the common law says that while a power of attorney is in force, and the signatory to it becomes incapable, it is from that day on null and void.

To this dilemma, many jurisdictions (but not all) have adopted statute which allows for springing or enduring powers of attorneys which allows the power of attorney to survive this event.

Following, so far?

For the mental ability to write a will, called testamentary capacity (see Grandpa's Gone Loco - Testamentary Capacity Issues In Canada), many jurists come back to the words of Justice Cockburn in Banks v Goodfellow, considered to be sacred ground for estate lawyers:

"It is not given to man to fathom the mystery of the human intelligence, or to ascertain the constitution of our sentient and intellectual being.

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

Although there are few intellectual meal as delicious as this, upon that springboard, the legislators have sprung.

And - oh! - how they’ve sprung!

The Fun Starts.

In adult guardianship cases, the Canadian province of British Columbia has an adult guardianship law called Patients Property Act which allows a judge to find that a person is capable of managing his person but not his affairs, or vice-versa! According to that statute, an appointment of an adult guardian “terminates” any power of attorney or any representation agreement “unless the Court orders otherwise”.

But within that same jurisdiction is a statute that presumes that somewhere between capacity and incapacity is a lily pad upon which a person can balance for certain purposes. Think I am making this up?

"An adult may make a representation agreement ... even though the adult is incapable of making a contract, or managing his or her health care, personal care, legal matters, financial affairs, business or assets."


It gets weirder.

The provincial power of attorney statute is silent as to capacity so the fallback would be the common law test. But a representation agreement includes a power of attorney as well as health and personal care directives. Effectively, what is prohibited under one statute is permitted under another. If a person is no longer capable of understanding and instructing on a power of attorney, they may yet fall within the test for a representation agreement and on that basis, the government exposes them to the far-reaching effects of a representation agreement.

Lawyers and seniors don't care. Frankly, the more tools for estate planning out there, the better it is. But while traffic buzzes by, the elephant in the room may rampage in the courtroom where, eventually, some judge somewhere is going to trip over the capacity wires. And when that happens, the wise judge takes out his judicial wire-cutters and starts cutting and that's when we get chaos. I recently heard a judge question whether, where adult guardianship proceedings were pending, a senior was entitled, even though represented by a lawyer, to sign a representation agreement? Whether, at considerable expense and risk to herself, she ought to defer to the pending adult guardianship proceedings? The jury is still out on that one but the  judicial musings - that an individual seniors' choices could be limited by extant legal proceedings taken by others -  ought to send a chill through the spines of seniors everywhere.

While the elderly rock away in residences from one ocean to the other, the lawmakers fathom the mystery of their human intelligence, fix what ain't broke, and add considerable fog to the toolbox of estate law by suggesting that there is some kind of middle ground - a moment in time - between an individual being capable and then incapable.

But maybe, as Herman Melville suggested, those crazy British Columbians are on to something?

Maybe, just maybe, there is no thin red line between those capable and those not, and any tentative but brave foray into the law which recognizes this, as Star Trek as is may seem to the common law, is a step into the future.


  • Banks v Goodfellow, (1870) 5 QB 549. The whole of the quote is: "It is not given to man to fathom the mystery of the human intelligence, or to ascertain the constitution of our sentient and intellectual being. But whatever may be its essence, every one must be conscious that the faculties and functions of the mind are various and distinct, as are the powers and functions of our physical organization. The senses, the instincts, the affections, the passions, the moral qualities, the will, perception, thought, reason, imagination, memory, are so many distinct faculties or functions of the mind. The pathology of mental disease and the experience of insanity in its various forms teach us that while on the one hand, all the faculties, moral and intellectual, may be involved in one common ruin, as in the case of the raving maniac; in other instances one or more only, of these faculties or functions may be disordered, while the rest are left unimpaired and undisturbed; that while the mind may be overpowed by delusions which utterly demoralize it for the perception of the true nature of surrounding things, or for the discharge of the common obligations of life, there often are, on the other hand, delusions, which, though the offspring of mental disease and so far constituting insanity, yet leave the individual in all other respects rational and capable of transacting the ordinary affairs and fulfilling the duties and obligations incidental to the various relations of life. No doubt when delusions exist which have no foundation in reality, and spring only from a diseased and morbid condition of the mind, to that extent the mind must necessarily be taken to be unsound; just as the body if any of its parts or functions is affected by local disease, may be said to be unsound though all its other members may be healthy and their powers or functions unimpaired. But the question still remains, whether such partial unsoundness of the mind, if it leaves the affections, the moral sense and the general power of the understanding unaffected, and is wholly unconnected with the testamentary disposition, should have the effect of taking away the testamentary capacity."
  • Duhaime, Lloyd, Grandpa's Gone Loco - Testamentary Capacity Issues In Canada
  • Duhaime, Lloyd, Representation Agreements
  • Oosterhoff, A.H., Oosterhoff on Wills and Succession, 6th Ed. (Toronto: ThomnsonCarswell, 2007), pages 182-183
  • Representation Agreement Act, R.S.B.C. 1996, c. 405
  • Wellesley v Vere, 2 Curt. 917 (1841)


Posted in Elder Law, Wills, Estates, Probate

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