Born in 1924, Mr. Martin was a very successful businessman. Twice married, with two children by his first wife and four stepchildren by his second, he designed an estate plan to divide his substantial fortune among his heirs.

As written, the plan favoured his natural chil­dren over his stepchildren. At the behest of his second wife, Mr. Martin met with estate planners to consider a more balanced plan.

During the process, Mr. Martin’s natural daughter came to believe he did not adequately understand the process. Fearing her father was being taken advantage of, she had him see a doctor to confirm whether he had the intellectual capacity to redesign his estate plan. A geriatric special­ist examined Mr. Martin and diagnosed mild “dementia of the Alzheimer’s type.” The daughter sought to have Mr. Martin see a second doctor but he refused.

A dispute broke out within the family and, at age 87, Mr. Martin found himself swept into a court battle against his daughter. She sought an order to compel her father to see a second doctor in hopes that another opinion would form the basis for a court order that he was incapable of managing his affairs despite the fact that Mr. Martin and his wife insisted he retained his mental faculties to a sufficient degree.

Under the Patients Property Act, a court may declare that a person who is incapable of managing their affairs becomes a “patient”. Another person is then appointed as “com­mittee” to make decisions on behalf of the patient. A committee of the person manages the patient’s personal and health care, and living arrangements; a committee of the estate manages the patient’s legal and finan­cial affairs. Once declared incapable, patients lose direct control of their assets and/or the right to make basic decisions for themselves. If you are declared incapable of managing your estate, for instance, you lose control of your assets. If you are declared incapable of managing your person, you can’t decide where to live or when to see a doctor.

The demographic in British Columbia is aging and life expectancy is rising, which means many people may outlive their mental capacity and their family might be forced to consider this remedy. In addition, people can fall into a spectrum of capacity. Some are clearly incapacitated while others fall into a grey area and may come in and out of capacity. The people falling into the latter category, in particular, can cause cata-strophic and divisive feuds within families.

Obviously a declaration of incapacity is extremely intrusive. A court will not make the declaration unless two medical doctors con­firm in writing that the person lacks capacity to manage their person or affairs, which is why Mr. Martin’s daughter sought an order compelling him to visit a second doctor.

However, a few simple tools can allow you to avoid such acrimonious circumstances and plan for incapacity. Most importantly, you can draft an Enduring Power of Attorney and Representation Agreement with Advance Directive. These legal instru­ments allow you to pre-appoint a person to control your assets or make personal decisions for you. They also allow you to tailor the types of choices your nominee may make for you. For example, you can set out preferences for medical treatments or assign broad or narrow control of certain assets to specific people to be passed on if you become incapacitated.

You can also nominate a committee while you have the capacity to do so. In the unfortunate event that you require a com­mittee, it can be reassuring to know that you have chosen that person.

Ultimately, the Court declined to order Mr. Martin to see a second doctor. Notwithstanding the diagnosis of demen­tia, the lawyers assisting with the estate plan deposed that Mr. Martin was “highly engaged” and “able to follow complicated business transactions.” The Court found no evidence Mr. Martin had made prior improvident decisions and declined to compel him to see a second doctor.

However, the Court also found that it could have made an order to compel a second assessment if the facts were different. Other people in similar circumstance have found their personal freedoms taken away and control of their life land placed in the hands of a family member or friend.

While some disputes are unavoidable, the few simple tools mentioned above will go far to preclude an unexpected and acrimoni­ous court battle, or at least give you some measure of control in the event you begin to lose your mental capacity later in life.

For more information on the best strategy to plan for or deal with your capacity issues, or those of your family, please contact Darren.