Re Sandhu and the Role of Capacity Assessments in Court

  • May 19, 2023
  • Nick Esterbauer, Hull & Hull LLP

Assessments of mental capacity are important tools in matters where there is a dispute as to capacity, whether that is the central issue in the litigation or a side issue that arises and interrupts the next steps. For example, in an estate litigation practice, we often see the challenge of gifts or testamentary documents made at a time when someone's mental capacity may have been diminished. A capacity assessment, typically by a designated capacity assessor, is also often the key piece of evidence in an application to appoint a guardian of property and/or personal care as a substitute decision maker for someone who is alleged to be incapable of making their own decisions.

In the context of an aging population where medical conditions tied to declines in mental capacity are on the rise as Canadians are living longer, there is a presumption that all adults are capable of managing their own property, we can only expect the tool of capacity assessments to become increasingly important. Case law provides us with some guidance as to best practices when relying on this important type of evidence.

A Recent Example in Re Sandhu

A recent decision of the British Columbia Supreme Court revisits the principles to be considered by a court when determining whether or not to direct the assessment of a person’s capacity in the context of a guardianship proceeding.