Occasionally a lawyer will meet with a client who may have a condition affecting mental capacity such as Alzheimer’s disease or another form of dementia.
If there is a question about the client’s mental capacity, the lawyer may ask the client for consent to contact his or her physician to obtain a letter of opinion regarding the client’s capacity. The letter to the physician may address the following:
- Does the patient have the capability to understand legal documents;
- Does the patient know who his/her next of kin are;
- Does the patient know the nature of his/her assets;
- Does the patient suffer any delusions which would affect his/her decision to sign legal documents.
If there is a more specific purpose for determining the client’s capacity that can also be addressed, for example:
- Does the patient have the mental capacity to understand a Power of Attorney and appoint an attorney to manage his or her financial affairs;
- Does the patient have the mental capacity to understand a Representation Agreement and appoint a representative to manage his or her personal affairs;
- Is the patient capable of changing the executor in his or her will;
- Is the patient capable of changing the beneficiaries in his or her will;
- Is the patient capable of appointing a committee to manage his or her affairs.
When it comes to making or changing a Representation Agreement, Section 3(1) of the B.C. Representation Agreement Act (RSBC 1996) CHAPTER 405 maintains a presumption of capability:
(1) Until the contrary is demonstrated, every adult is presumed to be capable of(a) making, changing or revoking a representation agreement, and(b) making decisions about personal care, health care and legal matters and about the routine management of the adult’s financial affairs.
(2) An adult’s way of communicating with others is not grounds for deciding that he or she is incapable of understanding anything referred to in subsection (1).
It is also important for a lawyer to determine whether the instructions given by the client are truly those of the client and that the client has not been unduly influenced by a family member or otherwise. A lawyer may decide to ask family members to leave the room during a meeting in order to screen for undue influence.