Tests of Mental Capacity

April 2016 – It is basic law that mental disability or illness does not, in and of itself, leave a person incapable under the law to carry out transactions, enter into relationships, or manage his or her affairs. The law’s focus is on the degree of mental disability or illness. If a person’s mental illness or disability exceeds in degree a legal threshold, then that person will be considered incapable in the eyes of the law. This legal threshold is commonly called a test of capacity. We speak with Kevin Zakreski, Staff Lawyer at the British Columbia Law Institute about a 2013 report that the BCLI released analyzing and critiquing this area of law.

What are the ethical implications of such tests of capacity? Does this system create catch-22s that can discriminate against persons with diminished capacity? Just what does capacity really mean and to what extent is our law about capacity consistent with modern medicine? 

Read the full report on the BCLI web page: http://www.bcli.org/project/rationalizing-and-harmonization-bc-common-law-tests-capacity