Mental Capacity Has Different Meanings in Different Contexts.

• Author: Gee, Donna L.

President Donald Trump consistently makes the news, though more often it seems for comments an elected leader with sounder judgment would not be making. Furthermore, among the many outrageous statements that have left people scratching their heads, there have also been moments caught on camera throughout the Trump presidency that have led many to speculate about the state of the President's mind.

Various video clips of the President appearing dazed and temporarily lost have been viewed by many around the world. Among the more noteworthy, the President wanders away from a photo-op with Israeli Prime Minister Netanyahu, leaving Netanyahu looking awkward before an aide directs the President back to shake his hand and pose for a photo. In another clip, the President descends from Air Force One and wanders down the tarmac away from the waiting presidential limo before an aide gently directs him back toward his waiting ride.

Of course, nobody from the most powerful among us to those of us from a more modest station in life is immune from the effects of aging. As we age, not only do our bodies slow down and deteriorate but so do our minds; even those of us lucky enough to escape the effects of senility, dementia, stroke, or depression. In this article, I will discuss the issue of mental capacity in two contexts: 1) the capacity to make a will or to give instructions to a lawyer for drafting a will; and 2) the capacity to make daily decisions about personal care and health, and to manage one's financial affairs. Essentially, capacity refers to a person's ability to understand the consequences of one's choices and actions. However, as will be explained, what constitutes capacity in a will-making context is not the same as the capacity to make decisions concerning personal care, health and managing one's financial affairs. This article will address these areas in general terms only as a thorough discussion of the complexities arising in these areas is beyond the scope of a brief article.

For purpose of simplicity, the term testator (the person who makes a will) is used to refer to either gender. In Alberta, the requirements pertaining to making a will are set out in the Wills and Succession Act, SA 2010, c. W-12.2 (referred to after as "the Act"). One of the requirements for making a valid will is that the testator must have the mental capacity to do so. However, the Act does not define mental capacity so lawyers and judges have had to look to case...