What is a Capacity Assessment in Ontario? When May You Need One?

Disclaimer: This article on capacity assessments in Ontario is intended for the purposes of providing information only. It is not to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice. It does not purport to be exhaustive.

Every day we make thousands of decisions. In fact, we don’t even realize how many choices we make.  However, our society generally recognizes that as adults, we can make our own choices. This applies from the trivial (what to eat for breakfast) to the significant (how to invest our money).

In some instances, someone may question a person’s ability to make those serious choices. That may be when a capacity assessment is required. This can be a complex area of law, so we want to give you a brief overview. In this article, we will cover:

  1. What is a capacity assessment?
  2. Why might you need to have one done?
  3. How is capacity determined?
  4. Who is qualified to perform a capacity assessment?

If you believe that a capacity assessment is necessary for someone that you love, you may have a lot of questions. It can be very emotional and overwhelming. We encourage you to read the below article and then book a call here. Our team would be more than happy to discuss your specific needs further.

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What is a capacity assessment?

The Substitute Decisions Act, 1992 governs the process for capacity assessments. It is used to determine whether someone is able to understand the facts of a situation and reasonably recognize the foreseeable effect of their decisions.

The decisions in question can relate to both property or personal care matters.

The law assumes that everyone is capable until someone proves otherwise. Therefore, it is up to the person seeking the capacity assessment to prove that the person is mentally incapable.

Why might you need a capacity assessment?

There are a few scenarios in which a capacity assessment is required.

First, a person may not have a power of attorney but can no longer make personal or financial decisions. The court may grant a guardian, meaning another person would have the legal authority to make decisions on their behalf. However, before granting that authority, the courts would have to determine that the person is mentally incapable.

In some instances, someone may have a power of attorney. However, it may clearly state that their mental incapacity must be proven before that power of attorney comes into effect. Unless there is wording that states how that should be proven, you would need a capacity assessor’s opinion.

We have also seen financial institutions request a capacity assessment, even with a power of attorney in place. It may be that a bank will freeze an account until such an assessment is provided, which can quickly cause issues for the attorney for property!

When preparing a will or power of attorney, you may also question whether the person is mentally capable enough to understand the impact of these documents. You may want a capacity assessment in that scenario. 

Of course, you may request a capacity assessment if you are an attorney for property or personal care. You may be unsure if it is time for you to step in and begin making decisions.

How is capacity determined?

There is no legal definition of capacity. The Substitute Decisions Act simply defines “capable” as “mentally capably”.

While the Capacity Assessment Office provides guidelines, determining capacity is not an exact science.  It also relates to certain types of decisions. For example, someone may not be mentally capable to manage their assets. However, they are capable of making decisions about their personal care.

However, assessors apply general protocols for each assessment. Capacity for managing property means that someone understands details about managing their property and appreciate the impact of their choices. Capacity for a person’s personal care means they understand facts about their health care, nutrition, shelter, clothing, hygiene and safety, and are aware of the impact of those decisions.

There is one nuance that is worth noting. Someone can make a “bad” or “unusual” choice, or even make a decision that appears to go against their interests. This does not mean that they are mentally incapable.  What matters is the person’s mental ability to reason and process the relevant facts.

Capacity is also very specific to that decision made in that situation and moment of time. We cannot describe people as completely capable or incapable. Instead, the courts view capacity on a case-by-case basis and the specific facts are a large factor into that decision.

Who is qualified to perform a capacity assessment in Ontario?

Many times, our clients ask if a family doctor can perform a capacity assessment. The short answer: probably not. A doctor’s note will not provide the required information to determine whether someone is capable or incapable.

As we noted, the Substitute Decisions Act, 1992 outlines many instances that require an official capacity assessor to perform the capacity assessment.

The Capacity Assessment Office lists all capacity assessors by region. They are quite costly, but the Capacity Assessment Office does provide financial assistance in some cases.

Capacity Assessments in Ontario – Where Do I Begin?

Again, capacity assessments can feel very overwhelming. At Beeksma Law, we are here for you. Our caring and proactive approach will help you navigate this process and allow you to care for your loved ones.

If you would like to book a call to discuss any of your estate needs, please do so here. Our team would be more than happy to meet with you.

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