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.  In Part 1 of this blog series, I will focus on the facts and outcome of this decision.

In Re Sandhu, 2022 BCSC 2027, an adult son and only child of the respondent sought to have his father declared incapable of managing his property and his corresponding appointment as guardian of his father’s property (under British Columbia’s Patients Property Act, a “committee” of the person’s “estate”).  The father and mother jointly responded, opposing their son’s application.  The BC Public Guardian and Trustee took no position.  

Under the Patients Property Act, two opinions of medical doctors are required in support of a declaration of incapacity to manage property.  While the materials before the court in this matter did include multiple medical opinions, the doctors’ views as to whether the father was capable of managing his own property differed.

The father had previously been assessed while at hospital by a geriatric physician, who had expressed concern regarding the father’s medical condition and its impact on his capacity, the physician did not directly opine on whether he remained capable of managing his property.  Another assessment was organized by the son and conducted with the son’s involvement and the assistance of an interpreter after the father’s release from the hospital, and supported that the father was incapable of managing property.  The father’s own lawyer subsequently arranged for a further capacity assessment, to which Justice Shergill referred as a “comprehensive independent medical examination”, conducted in the father’s native language of Punjabi. 

Notwithstanding the son’s apparent concerns regarding some of his father’s behaviour and the concerns expressed by the physicians who conducted the first two capacity assessments, Justice Shergill favoured the more recent assessment, in which the assessor concluded that the father was capable of managing his own affairs without assistance, and did not consider there to be any serious question regarding the father’s capacity warranting a further assessment.      

Accordingly, not only was the son’s application for appointment as guardian of his father’s property dismissed, but the father was not ordered to submit for a further assessment of his capacity to manage property. 

This case is a recent example of the court’s efforts to preserve autonomy and independence, and its respect for the presumption of mental capacity (as set out in Ontario under Section 2 of the Substitute Decisions Act), where there is insufficient evidence in support of allegations of mental incapacity or that evidence is rebutted by evidence of capacity that the court finds more reliable.  It also features an important review of (1) reasons why a capacity assessment may be viewed as less reliable than others, and (2) principles relevant to compelling an individual to submit for a capacity assessment.  I will review these two issues in more detail in Tuesday’s and Thursday’s blogs.

Thank you for reading,

Nick Esterbauer