This slide share discusses the basics of mental capacity and how it relates to estate law and estate planning.

1. The Basics of
Mental Capacity
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What is Mental Capacity?
• Mental capacity is the measure of a person’s ability to make certain
types of decisions and give effect to those decisions in a way that the
law will uphold as valid
• Over time, mental capacity can fluctuate and may deteriorate, often as
a symptom of an aging-related disease
• It can be important to distinguish mental capacity from physical
ailments – a person who is physically sick can nevertheless possess
mental capacity to validly perform most (if not all) tasks

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Dementia vs. Delirium
• Dementia is associated with the degeneration or a disorder of the
brain, often characterized by diminished mental capacity,
forgetfulness, and the inability to reason
• Dementia is typically progressive, with symptoms becoming
increasingly severe with time
• Alzheimer’s disease is one of the best-known types of dementia, and
is associated with memory problems, disorganized thinking, and
unusual behaviour
• Delirium differs from dementia in that it is typically temporary and
resolves after the treatment of the physical health condition with which
it is associated (often an infection)
• A person can experience delirium and later regain full mental capacity

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Why Care About Capacity Issues? - Statistics
• According to the Alzheimer’s Society of Canada, by 2031, there will be
approximately 1.4 million Canadians (and approximately 75.6 million
individuals worldwide) living with Alzheimer’s disease and other forms
of dementia
• The risk of diagnosis with Alzheimer’s disease and other dementias
increases significantly with older age
• Absent incapacity planning and estate planning at an early age, some
individuals may not be able to execute Powers of Attorney and Last
Wills and Testaments until it is too late

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Types of Mental Capacity
• Mental capacity is task-specific, meaning that different levels are
required in order to do certain tasks in a way that it legally valid
• For example, the level of mental capacity required to validly pay a bill
is lower than the capacity required to transfer real property or execute
a valid Last Will and Testament
• The capacity to marry is somewhat lower than most other thresholds
for mental capacity – this can be problematic within the context of an
aging society and the risk of predatory marriages in jurisdictions, such
as Ontario, in which marriage normally revokes any pre-existing Wills
• Interestingly, a person may be capable of providing instructions for and
executing a Power of Attorney for Property, while incapable of
managing his or her own financial affairs

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Thank you for reading!

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Thank you for reading!