By Barrie Hayes, Partner
Mental or cognitive capacity is an issue which arises not infrequently in estate practice. At law, one is presumed capable unless and until this presumption is rebutted. One’s capacity may fluctuate with any given decision or task in question and from time to time.
The legal standard for capacity varies in relation to the legal task being undertaken by the person in question.
- Capacity to manage property
This legal task arguably requires the highest level of capacity namely the ability to understand the information that is relevant in making a decision in the management of one’s property; and the ability to appreciate the reasonably foreseeable consequences of the decision or lack of a decision.
- Capacity to make personal care decisions
This task requires the ability by the person to understand the information that is relevant to making a decision relating to his or her own health care, nutrition, shelter, clothing, hygiene or safety; and the ability to appreciate the reasonably foreseeable consequences of the decision or lack of decision.
- Capacity to grant and revoke a power of attorney for property
This task requires that the person have knowledge of what kind of property he or she has and its approximate value; that the person demonstrate awareness of obligations owed to his or her dependents; that the person have knowledge that the attorney designated will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney; that the person have knowledge that the attorney must account for his or her dealings with the persons property; that the person have knowledge that he or she may, if capable, revoke the continuing power of attorney; that the person appreciate that unless the attorney manages the property prudently its value may decline; and that the person appreciate the possibility that the attorney could misuse the authority given to him or her.
- Capacity to grant and revoke a power of attorney for personal care
This task requires that the person have the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and that the person appreciate that the person may need to have the proposed attorney make decisions for the person.
- Capacity to make a will, revoke a will, make a codicil and make a testamentary designation
These tasks require the person to demonstrate an ability to understand the nature and effect of making a will revoking same or making a codicil and testamentary designation; the ability to understand the extent of the person’s property in question; and the ability to understand the claims of persons who would normally expect to benefit under a will, codicil or testamentary designation of the person.