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Court-compelled capacity assessments on unwilling adults could become a thing of the past in B.C. if a recent decision is followed by other judges in the province.

In the case of Sandhu (Re), B.C. Supreme Court Justice Palbinder Shergill declined to order a capacity assessment for an unwilling 76-year-old man after finding there was no justification for the court to intervene under its parens patriae jurisdiction.

“This does mark quite a shift in the law of B.C. if it stands,” says Polly Storey, a lawyer in the estates and trusts practice group with Vancouver firm Clark Wilson LLP, explaining that the ruling challenges more than a decade of established case law in the province.

Under B.C.’s Patients Property Act, a court may declare a person incapable only if there are already two medical opinions in support of the finding. According to Storey, this traditionally created difficulties for families whose apparently incapable loved ones refused to attend a medical examination to have their capacity formally assessed.

However, in its landmark 2012 decision in Temoin v. Martin, the B.C. Court of Appeal ruled that judges could intervene and order an assessment under the court’s parens patriae jurisdiction, because of the legislative gap created by the two-opinion requirement.

Temoin has been the law for more than 10 years, but this case suggests it may have changed,” said Storey, who was not involved in either case.

According to Justice Shergill’s decision, the man’s son had requested the court’s intervention as part of a bid to be appointed his father’s guardian following a series of incidents that raised concerns about the father’s ability to handle his own affairs. These included a number of falls at home, a prolonged legal battle over alleged bylaw infractions with the City of Richmond concerning the father’s property, as well as his diagnosis with a major neurocognitive disorder.

Critical to the judge’s ruling were amendments — enacted after the Temoin decision — to B.C.’s Adult Guardianship Act (AGA). The amendments created a mechanism for the province’s Public Guardian and Trustee (PGT) to have a person assessed for incapacity and take over as statutory property guardian if the individual was found incapable of managing their financial affairs.

Together, these updates “provide adequate tools to address the very concerns raised” by the son, Justice Shergill wrote, noting that the PGT had opted not to exercise its discretion to have his father assessed.

“The petitioner has failed to demonstrate that there exists a legislative gap that would support the court intervening to exercise its parens patriae power in this case,” she added in the Nov. 21 decision.

The case was complicated by the fractious personal history between father and son, who had been estranged for almost two decades before their brief reconciliation fell apart over their competing views of the father’s mental capacity. The son presented the court with one opinion that his father was incapable from a doctor who saw him shortly after a hospital stay in the summer of 2021.

The father initially agreed to his son’s request for a second psychiatric assessment, before changing his mind and hiring a lawyer, the decision said. A later evaluation arranged by the father’s counsel indicated that the father was capable of managing his own affairs “without any difficulty or assistance.”

Even if she was wrong to find the legislative gap closed, there was nothing in the evidence before her to “warrant the extraordinarily intrusive remedy” sought by the son, Justice Shergill wrote, pointing out the support the father enjoyed from his wife of 50 years, as well as her preference for the second psychiatric assessment, which was carried out in the father’s native Punjabi.

Storey has her doubts that the legislative gap identified in Temoin has actually been closed, noting that the PGT does not always reveal its reasons for staying out of a case, which could have been done without a full appreciation of the individual’s functioning. Meanwhile, the text of the updated AGA specifically preserves the jurisdiction of the court “to act in a parens patriae capacity.”

“There are still some arguments that could go before a court to be considered further,” she said.

Aron Mand, the Richmond lawyer who acted for the son, agreed with Storey’s assessment, but said his client has decided against appealing Justice Shergill’s ruling.

Although each province has its own framework for decisions about guardianship and compelled capacity assessments, Nick Esterbauer, a partner with Toronto-based Hull & Hull LLP, said the result in Sandhu would not look out of place in other jurisdictions.

“What the Sandhu decision highlights is the respect that courts in B.C. — like Ontario — have for the presumption of mental capacity, and how they are generally reluctant to intervene in a way that might restrict personal autonomy,” he said. “The least intrusive option is generally what the court is going to favour.”

According to Kimberly Whaley, the founding partner of Whaley Estate Litigation Partners in Toronto, the country’s aging population means those in legal and financial professional roles will have to get used to addressing capacity concerns about clients.

While the recent development of the trusted contact person regime gives financial advisors one route to explore the issue, Whaley said they should not be scared to confront a client directly.

“If the client is behaving in a way that doesn’t make sense given their history of investment and money management, then I wouldn’t mince words,” she said. “You have to ask them: ‘What is the reason for this change?’ Then you try to understand if the explanation they give is a rational one and whether it passes the smell test.”

In the meantime, Mand said the Sandhu case and others should spur financial advisors to talk to clients about the importance of getting their estate planning documents — including wills and powers of attorney — drafted and executed while they are in good health, since no further changes can be authorized once incapacity strikes.

“They should be letting their clients know that they need to put something in place,” Mand said.