What does the law say about capability?
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PDF file here]The traditional legal test of capability, for personal planning tools such as Power of Attorney, requires that the person giving the Power of Attorney understand the nature and effect of what they are signing. This is a high standard and is based on a narrow view of capability.
There are many British Columbians who cannot meet this test. Some due to a developmental disability; others due to an illness or accident – for example a stroke, brain injury, dementia, etc.
The Representation Agreement Act offers a new vision of capability. The Act says that until the contrary is demonstrated, anyone 19 years or older is presumed capable of making a Representation Agreement.
The law recognizes that the way a person communicates is not a factor in determining capability. Some people communicate using eye contact, symbols or through their behaviour. The law also says that someone who cannot make a traditional contract or manage their own affairs may make a Representation Agreement with standard powers. If an Agreement is challenged on the basis of capability, then all factors would be considered including whether there is a trusting relationship between the person and their Representative.
If you are helping someone now, with some or all of their affairs, you can help them make a Representation Agreement so they will get help from those they trust and who know them, read more in the Publications