Court Orders Mental Capacity Exam

The Court Orders Mental Capacity Exam

In Re Singh 2017 BCSC 984 the court invoked its parens patriae jurisdiction and  ordered a 93 year old father to undergo a mental capacity examination by two geriatric doctors .

Two of his six children claimed that their father was mentally incompetent to manage his own affairs and asked the court to order an assessment by two geriatric doctors. Based on his mental capacity exam, if he was found to be incapable then they sought to be appointed his committee under the Patients Property act. The other four children opposed the application. The family doctor stated that he showed signs of vascular dementia and had good days and bad days.

The court held that while it was an intrusion into the patients life it was important enough to order the mental capacity examinations under the inherent jurisdiction of the court to protect those who were incapable of protecting themselves.

35   Sections 3 and 5 of the Patient’s Property Act govern the procedure for obtaining a declaration of incapability. Those sections provide, in relevant part:

Hearing of application

3(1) If, on

(a) hearing an application, and

(b) reading the affidavits of 2 medical practitioners setting out their opinion that the person who is the subject of the application is, because of

(i) mental infirmity arising from disease, age or otherwise, or

(ii) disorder or disability of mind arising from the use of drugs, 

(iii) incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs,

The court is satisfied that the person is, because of

(c) mental infirmity arising from disease, age or otherwise

Examination 5(1) If

(a) an application is made or an issue is tried under section 3,

(b) an appeal is taken from an order under section 3, or

(c) an application is made under section 4,

the court hearing the appeal or application or trying the issue may order the person who is the subject of the application or the patient to attend and submit at the time and place the order directs to examination.

(2) An examination under this section must be made by

(a) one or more medical practitioners other than those whose affidavits were before the court on the appeal, application or trial, or

(b) a board of 3 or more medical practitioners designated by the College of Physicians and Surgeons of British Columbia at the request of the court.

36   In the leading case of Temoin v. Marlin 2012 BCCA 250, Neilson J.A., for the Court, observed at para. 27 that this legislation “reflects the tension between the right to personal autonomy and the protection of vulnerable individuals”.

37   I take the following principles from Temoin:

  • There is no statutory authority to order a person to undergo the medical examinations required for an application under s. 3 of the Act (at para. 48).
  • There is a gap in the Act, which provides no protection for individuals who appear to be incapable but have no access to physicians, or who refuse to be medically examined (at para. 51).
  • The parens patriae jurisdiction is founded on the need to protect those who cannot care for themselves. The court’s discretion must be exercised to do what is necessary for the protection of the person for whose benefit it is exercised (at para. 55, citing Re Eve, [1986] 2 S C.R 388).
  • The Court may exercise its powers under its parens patriae jurisdiction to fill in the gap by making what is effectively a provisional finding of incapacity for the limited purpose of bringing an individual within the Act and its procedural safeguards. However, this power must be exercised cautiously, and only on a proper evidentiary basis (at para. 56).
  •  The Court’s parens patriae jurisdiction must be used for the benefit of the person in need of protection, and not to benefit others (at para. 60).
  • The application to compel a person to undergo the two medical examinations required for a declaration of incapability engages the Charter values of liberty, autonomy and equality. “Those values are given meaning by requiring a level of proof that is commensurate with both the importance of the individual interests and the seriousness of the intervention at stake” (at para. 60).
  • The test for the exercise of the parens patriae power requires the applicant to present evidence establishing a serious question to be tried, both with respect to the individual’s capacity and his or her need for protection (at para 61).

38  In Temoin, at para. 61, the court also approved the test stated by the chambers judge: a requirement for “prima facie evidence of incompetence and a compelling need for protection

Delusions and Testamentary Capacity – 4 Factors to Consider

This video is about delusions and testamentary capacity required to make a will. The leading decision of testamentary capacity is Banks versus Goodfellow from 1857 which held that in order to have valid capacity, a person must 1) know what a will is; 2) know what assets he or she has and their value; 3) know who are not to be considering in leaving a bequest; and 4) be free of delusions that affect their ability to decide all of the above.

A person may be crazy but still have mental capacity. In fact, in the leading case of Banks versus Goodfellow, he thought his niece was the devil. On the other hand, he provided for his niece and she was his only next of kin and caregiver and the courts ultimately held that the will was valid.

I’ve had many cases involving delusions and it is difficult to tell when a person has a delusion when one first meets them. What will be obvious in time is that they hold a fixed and very rigid belief that most people would consider to be not be true. The person may in fact be psychotic.

Some of the different types of delusions are grandiose, a person may think they’re a megalomaniac or erotomania, they may feel that they’re in love with a very special public person and that that public person loves them as well. There can be delusions of persecution and delusions of your body doesn’t function at all. You’ve considered yourself for example paralyzed and any combination of those. But again, it’s difficult for the solicitor taking instructions from a person with aversions to actually realize that they may not have proper capacity to do a will.

Mental Capacity and Marriage

This video is about capacity to marry. That’s mental capacity. We all know the story of Anna Nicole Smith and her love affair and marriage to the 94 year-old billionaire. After his untimely passing, there was years and years of litigation which centered on whether he had mental capacity to marry the late Anna Nicole Smith. It never did get resolved.

At common law, very little intelligence was required to enter into the simple contract of marriage. More recently, the courts have taken a more realistic and modern view that the contract of marriage is not as simple as it once was and that a higher standard of capacity is required.

Dysfunctional Families: The Predator Spouse

Dysfunctional Families - Disinherited

A disturbing and increasing trend in dysfunctional families is the advent of the predator spouse who takes advantage of elderly victims and assumes control of usually financial affairs and marries the victim in short order.

Even if the family had been reasonably functional prior to this event, the interference of the predator spouse upon an elderly loved one can wreak severe consequences for both the victim and his or her family.

Every estate litigator has likely had experience with the predator spouse.

Typically they are much younger women, often a caregiver, who single out an elderly and vulnerable man who is typically recently widowed , and does so for the purpose of personal profit and exploitation.

Family members are usually cut off, excluded from the life of their loved one and not informed of the marriage ceremony.

The goal of the predator spouse is to enter into a legal form of marriage, while making the victim increasingly excluded from family members and totally dependent upon the predator. The overwhelming control exerted by the predator spouse is often backed up with the terrifying threat of putting the elderly spouse in a care facility .

In my experience the elderly widower is often cognitively impaired, significantly depressed and unable to care for himself. The predator spouse is often skilled at befriending such victims and often has a history of prior marriages for the same exploitive purpose.

The children are often beside themselves as they see both their family connection totally disrupted, as well as their possible inheritance going to an intervening stranger.

The relationship usually begins as either a hired caregiver or as someone who quickly befriends the elderly person and gains his trust through companionship and assistance. Many such men find the younger female predator to be sexually irresistible and cannot avoid the “temptation”.

The marriage ceremony often occurs in secret within several weeks of the start of the insidious relationship.

One of the major difficulties with such marriage ceremonies is that they are often very difficult in law to set aside, primarily on the basis of lack of mental capacity.

The courts generally speaking have had difficulty in defining exactly the test for capacity to marry, but seem to have adopted a standard that it is to be treated as quite low on the basis that marriage is a “simple contract.“ The judicial reasoning in my opinion could not be more incorrect given the complexity of current matrimonial laws, particularly as they relate to the division of property and assets, and the consequent  difficulty of divorce in present day.

Such judicial reasoning continues however that marriage is a “simple contract” requiring very little cognitive reasoning to understand the consequences of same.

Cases of the Predator Spouse

There has been at least one judicial decision where the court recognized the effect that a marriage has on one’s property and children and a higher standard of capacity to marry was applied.

That decision was in Alberta case of Barrett Estate v. Dexter 2000 ABQB 530. In that decision, the deceased had been tested for mental capacity prior to his death, and was found to have significantly impaired cognitive function and judgment. A geriatric physician opined that a person must understand the nature of the marriage contract, the state of previous marriages, one’s children and how they might be affected.

Probably my most egregious case was a widower who began to frequent the services of a prostitute who “specialized in seniors”. Within a short while the prostitute moved in with the elderly man, changed the locks and telephone number and cut him off from his three children. They married shortly thereafter, she arranged for him to change his will to provide for her exclusively, and  within three months of their marriage, she physically beat him to death, and was convicted of his murder.

Another successful challenge to a predator marriage was in Juzumas v Baron 2012 ONSC 7220 where the marriage was set aside on the basis that the contract of marriage was unconscionable due to the inequality of bargaining power, and undue influence.

The court stated as follows:

8     In his text, The Law of Contracts, John McCamus addresses the “cluster of doctrines” that apply “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement.” John D. McCamus, The Law of Contracts, 2nd ed. (Toronto: Irwin Law, 2012), at p. 378. The cluster of doctrines includes undue influence and unconscionability. If any one of these doctrines applies, the weaker party has the option of rescinding the agreement.

9      McCamus describes the equitable doctrine of undue influence as providing a “basis for setting aside a gift or a transaction where the transfer of value has been induced by an ‘unconscientious use by one person of power possessed by him [or her] over another.'” McCamus, at p. 402; see also Morrison v. Coast Finance Ltd. (1965), 55 D.L.R. (2d) 710 (B.C. C.A.), at p. 713; and Knupp v. Bell (1968), 67 D.L.R. (2d) 256 (Sask. C.A.), at p. 259. He addresses the distinction between the two categories of undue influence: actual and presumptive undue influence. As an example of actual undue influence, McCamus refers to Craig v. Middleton, [1970] 2 All E.R. 390 (Eng. Ch. Div.), in which a caregiver threatened an elderly dependent with abandonment: McCamus, at p. 403-404. The onus is on a plaintiff to establish actual undue influence.

10      A presumption of undue influence arises from the nature of a recognized relationship (e.g., solicitor and client, doctor and patient etc.). The presumption can also arise from the particular circumstances of the case, where one party has the ability or potential to “dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power.” Goodman Estate v. Geffen, [1991] 2 S.C.R. 353 (S.C.C.), at p. 377.

11      Such a presumption is rebuttable by evidence that the transaction was an exercise of independent free will: Geffen, at p. 379; and Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737 (Ont. C.A.), at para. 24-25. Evidence of free will may be demonstrated by evidence of independent legal advice, or at least an opportunity for the individual

Drafting Lawyer Has Heavy Duty to Investigate Testamentary Capacity

Drafting Lawyer Has Heavy Duty to Investigate Testamentary Capacity

Friesen v Friesen Estate (1985) 24 ETR 191 sets out inter alia the heavy duty upon a lawyer taking instructions for a will to investigate and satisfy him or herself that the testator has testamentary capacity.

77      The law reports of England and Canada are replete with lengthy decisions setting forth the principles to be applied when testamentary capacity has been challenged, and describing the standards expected of a solicitor who has drafted a challenged will. Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Tyrrell v. Painton, [1894] P. 151 (C.A.); Menzies v. White (1892), 9 Gr. 574; Murphy v. Lamphier (1914), 31 O.L.R. 287 (affirmed 32 O.L.R. 19); Leger v. Poirier, [1944] S.C.R. 152, [1944] 3 D.L.R. 1 (S.C.C.), and Slater v. Chitrenky, [1981] 4 W.W.R. 421, 10 E.T.R. 191, (sub nom. Re Campbell; Slater v. Chitrenky) 28 A.R. 54 (Alta. Surr. Ct.) [affirmed [1982] 3 W.W.R. 575, 11 E.T.R. 171 (C.A.)], are only a few. Rather than review or quote extensively from those cases, I will enumerate what I regard to be the basic rules to be garnered therefrom, as they apply to this case.

1. Proving testamentary capacity rests upon he who propounds the will or seeks to take advantage therefrom.

2. For a testator to be of a sound and disposing mind, he must understand the extent of the property of which he is disposing; he must be able to comprehend and appreciate the nature of the claims of others who might be expected to participate in his bounty.

3. Whenever a will is prepared and executed in circumstances which arouse the suspicion of the Court, it will not be admitted to probate unless the person propounding it produces evidence which is sufficient to remove the suspicion and to satisfy the Court that the testator both knew and approved the contents of the will.

4. The weight of the onus will be proportionate to the gravity of the suspicion raised in any particular case.

5. Neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity.

6. The duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous.

7. A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself by a personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood.

Parens Patriae Jurisdiction of the Courts

Parens Patriae Jurisdiction of the Courts

Re Senini 2016 BCSC 2299 invoked the  the parens patriae  jurisdiction of the courts to declare an adult no  longer incapable of handling her affairs.

The parens patriae jurisdiction is  founded on necessity, namely the need for the courts to act for the protection of those who cannot care for themselves. It is the power of the courts to act as the guardian for those who are unable to care for themselves such as children or disabled individuals.

The court found  a gap in the legislation of the Adult Guardianship act that occurred after a declaration of incapability was rescinded from the Public Guardian and Trustee in favor of the sister of the patient as her private committee. The latter declaration did not include a declaration of incapability.

The court found that under section 37(3) and (4) of the said act, a certificate of incapability is canceled when a private committee is appointed under that act.

If the adult has not been declared to be incapable, the adult becomes capable and there is no determination of incapability for the court to reject and no statutory guardianship for the court to end.

The court bus invoked its exercise of parens patriae jurisdiction to declare the adult no longer incapable. 

[28]         There is a gap in the legislation for declaring an adult to no longer be incapable in circumstances where the adult is declared incapable under a Certificate of Incapability (s. 32, AGA), the Certificate of Incapability is cancelled by the Court appointing a private committee under the PPA (ss. 37(3)(d) and 37(4), AGA) without at the same time declaring the adult incapable, and then the adult becomes capable.

[29]         With the Certificate of Incapability being cancelled by operation of the legislation, there is no determination of incapability for the Court to reject and no statutory property guardianship for the Court to end, under s. 35(4)(b) of the AGA, and declaring a person to no longer being incapable is not one of the declarations it is open to the Court to make under s. 35 of the AGA.

[30]         In such circumstances it would be appropriate for the Court to exercise its parens patriae jurisdiction to declare the adult no longer incapable.  If it were otherwise, there would be no other mechanism for the individual to receive confirmation of his or her capacity.

[31]         An appeal to the parens patriae jurisdiction of the Court is the equivalent of an appeal to its inherent jurisdiction; namely, a jurisdiction which can be exercised when no rule or statute explicitly confers jurisdiction.

[32]         The parens patriae jurisdiction of the Court is often invoked and exercised in matters involving the welfare of minors.  However, the jurisdiction has frequently been exercised in respect of a person incapable by reason of mental incapacity of acting in his or her own interests.  It is frequently invoked where consent to a medical procedure in respect of a mentally impaired person is required.

[33]         The leading case is E. v. Eve, [1986] 2 S.C.R. 388, in which the Court was asked for an order authorizing a non-therapeutic sterilization of a mentally impaired adult daughter by her parent.  The issue was whether the Court had jurisdiction to grant consent, and if so, whether the authority flowed from the parens patriae power.

[34]         The historical origin of the jurisdiction is set out in paras. 31 to 55 of that judgment.  The headnote to the case summarizes the passages found at paras. 72 to 77 of that judgment and I adopt that headnote as an accurate summary of the nature of the jurisdiction, and the manner in which it should be exercised.

[35]         In the most recent citation of the case in a British Columbia court, namely Forliti v. Forliti, 2016 BCSC 743, Skolrood J. held at para. 306 that his authority to impose conditions and restrictions upon the rights, privileges or powers of a committee was to be found in s. 16 of the PPA.  But he also said, “In the alternative, if s. 16 is not broad enough to authorize these conditions and restrictions, I would invoke my parens patriae jurisdiction to include such provisions in the committeeship scheme pursuant to a legislative gap.”  I agree this alternative approach was available.

[36]         It is thus appropriate for the Court to exercise its parens patriae jurisdiction in the unique circumstances of this particular case.  In doing so, the Court notes that similar to s. 4 of the PPA, the affidavits of two medical practitioners setting out their opinion that the person is no longer incapable should be presented to the Court for consideration in the exercise of its parens patriae jurisdiction

The headnote of the E v Eve decision of the Supreme Court of Canada ( 1986) 2 SCR 388 states: 

The parens patriae jurisdiction. From the earliest time, the sovereign, as parens patriae, was vested with the care of the mentally incompetent. This right and duty, as Lord Eldon noted in Wellesley v. Duke of Beaufort [(1827), 2 Russ. 1, 38 E.R. 236] . . . at 243 is founded on the obvious necessity that the law should place somewhere the care of persons who are not able to take care of themselves. In early England, the parens patriae jurisdiction was confined to mental incompetents, but its rationale is obviously applicable to children and, following the transfer of that jurisdiction to the Lord Chancellor in the 17th century, he extended it to children under wardship, and it is in this context that the bulk of the modern cases on the subject arise. The parens patriae jurisdiction was later vested in the provincial superior courts of this country, and in particular, those of Prince Edward Island.

The parens patriae jurisdiction is . . . founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her “benefit” or “welfare”.

The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J. v. C., [1970] A.C. 668, at 703, the authorities are not consistent and there are many twists and turns, but they have inexorably “moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion . . . ” In other words, the categories under which the jurisdiction can be exercised are never closed. Thus I agree with Latey J. in Re X [(a minor), [1975] 1 All E.R. 697] . . . at 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive.

What is more, as the passage from Chambers cited by Latey J. underlines, a court may act not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended. I might add that the jurisdiction is a carefully guarded one. The courts will not readily assume that it has been removed by legislation where a necessity arises to protect a person who cannot protect himself.

. . . the jurisdiction may be used to authorize the performance of a surgical operation that is necessary to the health of a person, as indeed it already has been in Great Britain and this country. And by health, I mean mental as well as physical health. In the United States, the courts have used the parens patriae jurisdiction on behalf of a mentally incompetent to authorize chemotherapy and amputation, and . . . in a proper case our courts should do the same. Many of these instances are related in Strunk v. Strunk, 445 S.W. 2d 145, where the court went to the length of permitting a kidney transplant between brothers. Whether the courts in this country should go that far, or as in [Matter of Quinlan, Re 355 A. 2d 647 (N.J. S.C., 1976)] . . . permit the removal of life-sustaining equipment, I leave to later disposition.

Mental Incompetency and the Patient’s Property Act

Mental Incompetency and the Patient's Property Act

Re Silkstrom 2017 BCSC 206 involved a contested application under the Patient’s Property Act to be appointed the committee of the person of an elderly mental incompetency patient.

A Trust company had earlier been appointed to manage the elderly woman’s  financial affairs pursuant to a Power of Attorney that she signed when she was still mentally competent.

The applicants were a close  friend who had cared for the patient for several years, and the opposing applicant was a niece and her husband.

The patient had no close family.

The Court reviewed the various factors to be considered , found there was potential for conflict of interest with the niece and granted committee-ship of the person to the good friend.

Committeeship of the person would allow the friend to make health care decisions for the patient, while the trust company would continue to mange her financial affairs.

The Applicable Law

17      The test for determining who is appropriate to act as a committee invokes the parens patriae jurisdiction of the court and is governed by the assessment of who will serve the patient’s best interests, including a consideration of who can best deal with the patient’s financial affairs, nurture her estate, and see that her income and estate are applied for her greatest benefit.

18      Although each case must be decided on its particular facts, in Re Bowman, 2009 BCSC 523 at para. 33, the court set out a number of considerations which guide the court’s decision-making:

(a) the proposed committee’s previous involvement with the patient or her family;

(b) the proposed committee’s knowledge and understanding of the patient’s situation and needs;

(c) the proposed committee’s level of experience and capability in performing the duties of committee;

(d) the plan of the proposed committee for the management of the patient; and

(e) any potential conflict of interest between the proposed committee and the patient.

19      More recently, in Stewart (Re), 2014 BCSC 2321 at para. 29, Justice Masuhara summarized additional criteria from a number of decided cases. I set out only those criteria relevant to this decision which relates only to appointing a committee of the person. They are:

(a) whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;

(b) whether immediate family members are in agreement with the appointment;

(c) whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;

(d) the level of previous involvement of the proposed committee with the patient, usually family members are preferred;

(e) the level of understanding of the proposed committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;

(f) whether the proposed committee will provide love and support to the patient;

. . .

(i) who is best to advocate for the patient’s medical needs;

(j) whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; …

Dementia disease

Dementia disease

An epidemic of dementia disease is predicted to occur within the next 15-20 years.

The most common types of dementia disease such as Alzheimers, frontotemporal dementia, vascular dementia, and Lewy Bodies are expected to dramatically increase by %50  over the next 15 -20 years as our population ages. Dementia is often present in various estate disputes such as lack of mental capacity when signing a will or power of attorney.

The implications of a dementia are substantial for the patient and extremely far-reaching, not only for the patient, but also for the family.
Family members often assume the role of caregivers or guardians, which can be a complete role reversal from previous years.
It is important to remember that patients with dementia usually do not fully understand their diagnosis, prognosis, and treatment options. The family members must be trained regarding the patient’s safe housing and  care.
Because of the lack of personal insight, the demented person may not fully understand that certain activities will no longer be safe for them to do, such as driving or using power tools.
Behavioral problems such as agitation or aggression are often common in patients with dementia, and  can  cause burnout amongst family members who are burdened with their care.

Alzheimers is perhaps the most well known type of dementia but several types of dementia exist.

By definition a dementia constitutes impairment of at least one dominant domain of cognitive function ( such as abstract thought, executive functioning, language, or visual/spatial skills) that results in daily activity  impairment. The diagnosis of dementia requires the exclusion of other cognitive impairments such as delirium and depression.

Many seniors are affected by depression and the cognitive effects of depression can vary in scope and severity and may ultimately result in dementia, but its effects can often be reversed. Dementia and depression often frequently co -concur in seniors.

There is both cortical and sub cortical dementia. Cortical dementias are typically progressive and degenerative and ten to be associated with impaired language skills ( aphasia), perception, reasoning, problem solving, and recall.

By contrast sub cortical dementias  may be  progressive, static or reversible and are associated with cognitive slowing, emotionality, such as apathy or depression, and deficits in attention, arousal, and processing speed.


Alzheimer disease is the most common type of dementia that affects approximately 1/3 of persons aged 85 years or older in the United States.
One of its telltale characteristics a short term memory loss, coupled with impaired judgment, confused or vague speech, and poor insight.
The aspect of poor insight commonly causes patients to think there is not much  wrong with their memory or health as their social skills are often preserved with patients often being described as “pleasantly confused”.
As the disease progresses, however the patient often exhibits changes in personality, agitated behavior or both.
The typical disease course from symptom onset to death is 6 to 9 years.

Dementia with Lewy Bodies

The disease typically occurs between the ages of 50 and 60 years and is slightly more common in men.
The disease presents with a cognitive profile marked by prominent impairment of attention, Visuospatial functioning and executive function.
The patient typically is more demented in his or her attention spatial ability rather than the prominent short-term memory loss of Alzheimer’s disease.
Visual hallucinations may also occur.

Frontotemporal Dementia

This is the third most common form of dementia, whose onset most commonly occurs between ages 50 and 60 years, but can be 15 years earlier or 15 years later.
The most striking feature that brings the patient to clinical attention is a notable personality change with poor insight.
The behavior is typically impaired social conduct, poor impulse control, sexually inappropriate comments or behaviors, in violation of interpersonal space.
Depending on where the disease occurs in the frontal lobes, the behavior can also manifest itself as passivity, poor personal hygiene and mimicking behaviors.
This type of dementia rapidly progresses over a 5 to 10 year course.

Vascular Dementia Disease

After Alzheimer’s, vascular dementia is the second most common type of dementia, accounting for 10 to 50% of all cases of dementia among adults 65 years or older. It is often referred to as cognitive impairment caused by strokes or mini strokes.
Impairment in vascular dementia ranges in its severity and type depending on the degree of tissue damage to the small blood vessels.
Hypertension and diabetes are significant risk factors that can lead to vascular dementia.

Dementia Due to Parkinson Disease

 Patients with Parkinson disease can develop slowly progressing dementia that usually occurs in the latter stages of the disease, typically about 10 years after its onset.
For patients with dementia due to Parkinson disease, the incidence of dementia it will increase with the greater physical impairment, and the dementia is more pronounced when rigidity is the most prominent  symptom and less pronounced when tremor is the most prominent symptom.
The cognitive profile is notable for predominant executive dysfunction as well as impairment in them in attention and memory.
Approximately 1/3 of Parkinson patients will develop this dementia, which will increase to almost 50% after 15 years from the initial onset of Parkinson disease.

Committeeship and the Patients Property Act

Committeeship and the Patients Property Act

Re Haston 2016 BCSC 1962 is a good review of the law relating  to the appointment of a committee under the Patients Property Act, as well as the criteria for choosing the best party to be the committee. Once appointed the committeeship voids any Powers of Attorney or Representation agreements that existed prior to the court order for committeeship.

21      The applicable statutory provisions for the judicial determination of whether a person is incapable of managing herself or her affairs are found in s. 3 of the Patient Property Act

Hearing of application

3(1) If, on

(a) hearing an application, and

(b) reading the affidavits of 2 medical practitioners setting out their opinion that the person who is the subject of the application is, because of

(i) mental infirmity arising from disease, age or otherwise, or

(ii) disorder or disability of mind arising from the use of drugs,

incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs,

incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs, it must, by order, declare the person

(2) The court may, on hearing an application under this section and reading the affidavits described in subsection (1), direct an issue to be tried, and in that event the following provisions apply:

(a) the question in issue is whether the person who is the subject of the application is, because of

(i) mental infirmity arising from disease, age or otherwise, or

(ii) disorder or disability of mind arising from the use of drugs,

(b) this Act applies to the issue and the trial of it;

(c) the Supreme Court Civil Rules apply;

(d) the court must

(i) dismiss the application, or

(ii) by order, declare that the person who is the subject of the application

(A) is incapable of managing his or her affairs,

(B) is incapable of managing himself or herself, or

(C) is incapable of managing himself or herself or his or her affairs.

the court is satisfied that the person is, because of

(c) mental infirmity arising from disease, age or otherwise, or

(d) disorder or disability of mind arising from the use of drugs,

(e) incapable of managing his or her affairs,

(f) incapable of managing himself or herself, or

(g) incapable of managing himself or herself or his or her affairs.


24      Section 6 of the PPA provides that “on application . . . the court may appoint any person to be the committee of a patient.” The powers of a committee are set out in ss. 15 and 17.

25      In circumstances where a patient has been declared incapable of managing herself or her affairs, these include “all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind”, and as well “the custody of the person of the patient”: PPA s. 15(1)(a) and (b)(ii).

26      A committee is also vested with all “the rights, powers and privileges that would be exercisable by the patient as a trustee, as the guardian of a person, as the holder of a power of appointment and as the personal representative of a person, if the person were of full age and of sound and disposing mind”: PPA s. 17.

27      Section 16 allows the court to “attach conditions or restrictions” on the powers of a committee in the same order by which the committee is appointed. Committeeship may be divided between multiple joint or co-committees.

28      The PPA does not prescribe any criteria for the selection of an appropriate committee. Section 18(1) provides as follows:

18(1) A committee must exercise the committee’s powers for the benefit of the patient and the patient’s family, having regard to the nature and value of the property of the patient and the circumstances and needs of the patient and the patient’s family.

29      Counsel provided two main authorities that discuss the relevant factors the court should consider when determining who is best suited to act as a committee under the PPA: Baker-MacGrotty v. Baker, 2016 BCSC 699[Baker-MacGrotty] and Bowman (Re), 2009 BCSC 523 [Bowman].

30      In Bowman, at paras. 32-34, Dardi J. held that “the test for determining who is an appropriate committee . . . is governed by the patient’s best interests”; the choice between two proposed committees involves an inquiry into who will best serve those interests: see also Re Pineo [1985] B.C.J. No. 1171 (S.C.) at para. 6.

31      In Baker-MacGrotty at para. 37, Bernard J. quoted Masuhara J.’s helpful summary from Stewart (Re), 2014 BCSC 2321, of the applicable law on this question. Masuhara J. listed the following considerations:

(a) whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;

(b) whether immediate family members are in agreement with the appointment;

(c) whether there is any conflict between family members or between the family and the patient, and whether the proposed Committee would be likely to consult with immediate family members about the appropriate care of the patient;

(d) the level of previous involvement of the proposed Committee with the patient, usually family members are preferred;

(e) the level of understanding of the proposed Committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;

(f) whether the proposed Committee will provide love and support to the patient;

(g) whether the proposed Committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient’s benefit;

(h) whether a proposed Committee has breached a fiduciary duty owed to the patient, or engaged in activity which diminishes confidence in that person’s abilities to properly handle the patient’s affairs;

(i) who is best to advocate for the patient’s medical needs;

(j) whether the proposed Committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; and

(k) whether a division of responsibilities such as between the patient’s estate and the patient’s person to different persons would serve the best interests of the patient, or would such a division be less than optimal for the patient.

32      I would add to this non-exhaustive list the following considerations: whether the proposed Committee’s resides near the patient; whether the proposed Committee is able to provide transportation for the patient, if necessary; whether outside demands on the proposed Committee’s time and availability will detract from his or her ability to perform his or her obligations; and whether the proposed Committee is able and willing to facilitate any recreation or religious practice in which the patient wishes to participate.

Mental Capacity Required to Marry and Separate Incorrect

Mental Capacity Required to Marry and Separate Incorrect

As any of the legions of matrimonial lawyers will tell you, it may be easy to get into this simple contract, but it is not at all that easy to extricate oneself from it.

In Wolfman-Stotland v. Stotland, 2011 BCCA 175 (B.C. C.A.), leave to appeal ref’d [2011] S.C.C.A. No. 242 (S.C.C.) the issue was whether Mrs. Stotland had the capacity necessary to form the intention to live separate and apart to support the application for a s. 57 declaration of no possibility of reconciliation, which has the effect of severing their joint assets and crystallizing family assets.

The wife suffered from dementia and her mistaken fear was that her husband’s “ sneaky” nephew would inherit her assets .

Mrs. Stotland suffered from mild to moderate cognitive impairment and was not capable of managing her financial affairs.

She was examined by a doctor, who concluded that she likely had the capacity to instruct counsel on the matter of her divorce.

Her only complaint about her husband of 55 years was that he “falls asleep at bingo” and despite that the court found that she had the mental capacity required to separate ( or conversely to marry) as it is the lowest test required for capacity.

The Court of Appeal dismissed the appeal and found that the wife met the lowest test of mental capacity required to separate under S 57 Family Law act, being the same test as that required to marry:

[23] In A.B. v. C.D., the husband, who opposed the granting of a s. 57 declaration, conceded that his wife had general capacity to manage her affairs and to instruct counsel. The husband sought a medical examination under then Rule 30(1) to establish that his wife suffered from a delusional disorder that informed her intention to live separate and apart. The chambers judge, in reasons indexed as 2008 BCSC 1155, concluded that since the wife had the capacity to conduct her own affairs and to instruct counsel, her adverse mental condition, if it existed, had no bearing on the issues to be determined in the divorce proceeding.

[24] On appeal, this Court upheld the chambers judge and adopted the comments in Professor Robertson’s text, Mental Disability and the Law in Canada, 2d ed. (Toronto: Carswell, 1994) referred to by the chambers judge at paras. 23-24 of his reasons:

[23] The capacity to form the intention to live separate and apart is discussed in Professor Gerald B. Robertson’s Mental Disability and the Law in Canada, 2nd ed., (Toronto: Carswell, 1994) at 272:
Where it is the mentally ill spouse who is alleged to have formed the intention to live separate and apart, the court must be satisfied that that spouse possessed the necessary mental capacity to form that intention. This is probably similar to capacity to marry, and involves an ability to appreciate the nature and consequences of abandoning the martial relationship.

[24] Professor Robertson went on to discuss the capacity to marry at pp. 253-254:
In order to enter into a valid marriage, each party must be capable, at the date of the marriage, of understanding the nature of the contract of marriage and the duties and responsibilities which it creates…. The test does not, of course, require the parties to be capable of understanding all the consequences of marriage; as one English judge aptly noted, few (if any) could satisfy such a test. …the common law test is probably only concerned with the legal consequences and responsibilities which form an essential part of the concept of marriage. Thus, if the parties are capable of understanding that the relationship is legally monogamous, indeterminable except by death or divorce, and involves mutual support and cohabitation, capacity is present. The reported cases indicate that the test is not a particularly demanding one. As was said in the leading English decision, “the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend”.

… Capacity to marry may exist despite incapacity in other legal matters. This necessarily follows from the fact that the requirements of legal capacity vary significantly as between different areas of law, and must be applied specifically to the particular act or transaction which is in issue. Thus, for example, a person may lack testamentary capacity yet have capacity to marry. Similarly, a person may be capable of marrying despite having been declared mentally incompetent and having had a property guardian or guardian of the person appointed.

[25] This Court ultimately concluded:

[36] In summary, disordered or delusional thinking which may contribute to an individual’s intention to live separate and apart, does not diminish that individual’s capacity to form that intention, provided it does not reach the level of incapacity that interferes with the ability to manage his or her own affairs and instruct counsel. In this case, there is no probative value to the evidence the husband seeks to obtain by his R. 30(1) application as the wife admittedly has the higher level of capacity to manage her own affairs. As a result, the wife’s mental condition, even if she was found to be suffering from delusional disorder, cannot be an issue in the proceeding.

[26] A useful discussion of the hierarchy of levels of capacity is found in Calvert at paras. 54-56:

[54] Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.
[55] The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427. If marriage is simple, divorce must be equally simple. The American courts have recognized that the mental capacity required for divorce is the same as required for entering into marriage: re: Kutchins, 136 A. 3d 45 (Ill., 1985).

[56] There is a distinction between the decisions a person makes regarding personal m
matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will: Park, supra, at p. 1426. (I note that Mr. Birnbaum felt that, in August 1994, he would have taken instructions for a will but for Dr. Hogan’s concern about her ability to instruct counsel.) While Mrs. Calvert may have lacked the ability to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce.

[27] As the authorities make clear, the capacity to form the intention to live separate and apart has been accepted as equivalent to the capacity to enter into a marriage. As the Court stated in Calvert, the intention to separate requires the lowest level of understanding. The requisite capacity is not high, and is lower in the hierarchy than the capacity to manage one’s affairs.
. . .
[31] In my opinion, if, as Dr. Sloan has concluded, Mrs. Stotland has the capacity to instruct counsel, especially on financial matters related to a divorce, the test of capacity to form the intention to live separate and apart was met.
[Underlining added.]