How Is Mental Capacity Assessed in Manitoba? What Families Should Know

If you are worried about a parent's decision-making, you may be wondering who decides whether they still have capacity, and what happens if they do not. These questions often arise around money, health care and powers of attorney.

Capacity is a legal idea as well as a medical one, and the test depends on the decision being made. This article explains the Manitoba tests that are clearly set out in legislation and where the answer depends on the situation.

This article covers the law of Manitoba.

Capacity depends on the decision

Capacity is not a single label that applies to everything a person does. Under The Health Care Directives Act, a person has capacity to make health care decisions if they are able to understand the information relevant to the decision and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Capacity may exist for some treatments and not others. In practice, that means the question is asked about the particular treatment in front of the person, not about the person as a whole. How capacity is judged for money or property decisions depends on the situation, so it is worth confirming with a lawyer.

The starting presumption

A person 16 or older is presumed capable unless there is evidence to the contrary. How a diagnosis or a family member's concern fits into that depends on the situation, so it is worth confirming with a lawyer. The question is whether the person can meet the test for the particular decision.

Who carries out a formal assessment, and what steps they follow, depends on the setting and the decision involved. If you need a formal opinion for a specific purpose, a lawyer can confirm what is appropriate for your situation.

Capacity and powers of attorney

Under The Powers of Attorney Act, mental incompetence means the inability of a person to manage their affairs. The donor is the person who gives the power, and the attorney is the person authorized to act.

A power of attorney continues despite the donor's mental incompetence only if it meets several requirements:

• it is in writing;
• it is signed by the donor, or acknowledged by the donor, in a witness's presence;
• it is signed by the witness in the donor's presence; and
• it states that it is to continue despite the mental incompetence of the donor.

An enduring power is void if the donor could not understand its nature and effect when signing. That is why capacity at the time of signing can become important later if someone challenges the document.

There are rules about the attorney too. At the time the donor signs, the attorney must be an adult, mentally competent and not an undischarged bankrupt. The power also ends if the attorney dies, becomes bankrupt or becomes mentally incompetent, and it ends when the donor dies.

What a finding of incapacity means

Where there is no valid enduring power and a person can no longer manage their affairs, the next steps depend on the facts. The Public Guardian and Trustee has managed property for some adults, and it may keep managing property after such a person dies until a court appoints an executor or administrator. A lawyer can explain the options that apply to your family.

What to do if you are worried

• Note specific examples of what concerns you, such as missed bills or confusion about decisions, with dates.
• Remember that the presumption is that an adult is capable unless there is evidence otherwise.
• Locate any existing power of attorney and check whether it states that it continues despite mental incompetence.
• Avoid pressuring the person to sign anything new while capacity is in question.
• Speak with a lawyer early, because the right steps depend on the decision and the documents.

Frequently asked questions