Case Update: Court Ordered Examinations to Determine Incapacity in British Columbia

Lynn Temoin believed her father Llewellyn was not capable of managing his affairs. There was evidence that Llewellyn had some memory loss and Lynn was concerned that Llewellyn’s wife was taking advantage of this state to unduly influence the distribution of his estate. A psychiatrist examined Llewellyn and concluded that he did not have the capacity to make a will, but she did not report any findings as to whether he could manage his own affairs.

Llewellyn did not want to submit to any examinations to determine whether he was capable of managing his affairs. Lynn appealed under The Patients Property Act that allows the court to order someone to undergo examinations in certain circumstances. A 1975 case held that such examinations could only be ordered if there were already two physicians who deemed the person incapacitated. Lynn argued that there was a legislative gap in this Act and that the Supreme Court of British Columbia had parens patriae jurisdiction.

In Temoin v. Martin, the Supreme Court of British Columbia refused to order an examination on Llewellyn because there was not sufficient evidence to establish that Llewellyn was prima facie incompetent. There was evidence that he suffered from memory loss, but that is not the same as evidence that he is incapable of making financial decisions.

See Stan Rule, Temoin v. Martin, Rule of Law, Dec. 20, 2011. 

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this article to my attention.