How Mental Capacity Is Assessed in Newfoundland and Labrador

When a parent becomes confused, families often ask who can officially say whether they can still make decisions. In Newfoundland and Labrador there is no single capacity test that applies to everything. Who decides, and by what standard, depends on whether the question is about health care, money and property, or a hospital admission.

This article walks through the main routes in plain language, what happens after a finding, and the practical steps a family can take. It is general information, and a lawyer can help you apply it to your own family.

This article covers the law of Newfoundland and Labrador.

Capacity depends on the question being asked

Capacity is specific to the decision. Someone may be able to choose their own medical treatment but struggle to manage complicated finances, or the other way around. That is why different laws give the decision to different people.

Capacity to make a will is a separate question from these, and how it applies to a particular will depends on the facts, so it is worth confirming with a lawyer. A person who opposes a grant of probate can enter a caveat in the registry, and the court may require a will to be proved in solemn form.

Health care decisions

Under the Advance Health Care Directives Act, a person 16 or older is presumed competent. Competence means being able to understand information relevant to a health care decision and its foreseeable consequences.

The maker's doctor makes and records a finding of incompetence, and must tell the maker of the right to contest it. If the maker chooses a second doctor who finds them competent, that finding prevails. A challenge goes to the Trial Division within 30 days.

If no substitute has been appointed, the decision maker is chosen from a list that starts with the spouse, then children, parents, siblings and other relatives, ending with the responsible health care professional, and each must be at least 19. A directive must be written, signed and witnessed by at least 2 independent persons.

Money and property: the court's role

Under the Mentally Disabled Persons' Estates Act, the court may declare a person incapable of managing their affairs because of mental infirmity from disease, age, habitual drunkenness, drug use or another cause. The court decides. The applicant can be an interested person, a claimant or the person responsible for the person's care.

The court may then appoint a guardian of the estate. The guardian must file an inventory within 6 months and account to the court, a new guardian may be appointed for good cause, and when the guardian is discharged the property is revested. The Public Trustee manages finances only and does not generally make medical decisions. If the court finds the person has regained capacity, the assets are returned.

For involuntary admission to hospital, the Mental Health Care and Treatment Act requires a first certificate signed by a physician, nurse practitioner or authorized person and a second certificate by a psychiatrist, or another physician if no psychiatrist is readily available. A Mental Health Care and Treatment Review Board hears applications.

Planning ahead with an enduring power of attorney

Signing an enduring power of attorney while still capable is one way to plan ahead, and how it interacts with any court application depends on your situation, so it is worth confirming with a lawyer. It must be signed by the donor, countersigned by a qualifying witness who cannot be the attorney or the attorney's spouse or cohabiting partner, and be exercisable during legal incapacity. The attorney must be 19 or older.

• The power is not terminated just because the donor later becomes incapacitated.
• Legal incapacity means a mental disability such that the person cannot understand the nature and effect of an action.
• The attorney must protect the donor's best interests and is treated as a trustee of the donor's property.
• The donor may revoke the power at any time while having legal capacity.
• A court may order the attorney to submit accounts where the donor is incapacitated, and may substitute another attorney.

What to do next

• Write down specific examples of the confusion, with dates, so a doctor has a clear picture.
• Ask whether your parent signed an enduring power of attorney or a health care directive, and locate the documents.
• Arrange a medical visit with your parent's doctor, since for health care decisions the doctor makes and records any finding of incompetence.
• If no power of attorney exists and finances are at risk, speak with a lawyer about a court application.
• Keep your parent involved in decisions as much as possible.

If the family disagrees about whether a parent has capacity, getting legal advice early can prevent a dispute from growing.

Frequently asked questions