A court should not force an elderly person to undergo a medical examination to determine mental capacity. Mental capacity should be presumed.

That was the argument from Emily Clough at the B.C. Court of Appeal. In 2017, the lower court consolidated two proceedings. The express purpose of the consolidation was to allow family members to challenge the mental capacity of the older adult by allowing them document disclosure and examinations for discovery. The B.C. Court of Appeal determined that the consolidation was improper. As a result, the older adult will not be forced to prove his own capacity: he will not be subject to cross examination on his mental capacity, and he will not be forced to disclose his own medical documents. He is presumed to be capable.

Her case was featured in The Lawyer’s Daily, which you can read here.

Emily has been a sought-after voice for clients, particularly those with incapacity issues or vulnerable adults. She was recently named to the Board of Directors of the British Columbia Law Institute. To learn more about her practice or her work in incapacity type matters, click here.