The law presumes that an adult is capable. Section 3(1) of the Adult Guardianship Act, R.S.B.C. 1996, c.6 provides:
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 person.
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 capability?
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 jurisdiction.
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 the person.
If you have any questions about mental competency assessments or mental capacity, please contact one of our Wealth Preservation + Estate Litigation professionals.