Capacity Assessments FAQs

The individual, friend, family member, Health Care Professional, Lawyer.

• Concerns that the individual is unable to manage their personal finances or personal care.

• Concerns that an individual may be or is at risk of mismanagement or exploitation of their personal finances.

• To reassess or terminate guardianship for the individual (statutory/court ordered)

• To reassess or terminate the individual’s guardianship for personal care

• Whether the requestor pays for the services of a capacity assessment, a copy of the report goes to the individual directly.

• Information gathering around the individual’s present situation and concerns, review of medical/financial records (if available), personal interview with the individual as long as they assent to interview, preparation of report and required documents, filing and documentation delivery.

• The following information comes from: Guidelines For Conducting Assessment of Capacity (Capacity Assessment Office, Ministry of the Attorney General, May 2005) This information is up to date.

When encountering a situation where the person is mismanaging or endangering himself or others, the assessor must balance off the infringements to the individual’s dignity and right to make risky decisions against the benefits of protecting the vulnerable individual from potential harm. Unless there is clear and compelling evidence of impaired “ability to understand and appreciate”, the assessor cannot use a finding of incapacity as a means to manage risk. There can be occasions where the individual’s dignity and right to make risky decisions in the interest of the right to self-determination will take priority over the need to protect the individual from potential harm.

In every case, there is presumption for capacity and there should be reasonable grounds that prompt the request for a formal capacity assessment. Routine screening of whole classes of individuals cannot and should not be endorsed, as this prejudges an individual’s capacity based on class membership. For example, it is incorrect to assume that all intellectually disabled persons must be incapable by virtue of their disability. It is incorrect to assume that a diagnosis of severe psychiatric disorder like schizophrenia renders the person unable to meet his or her personal care or financial needs.

The presence of mental illness or a significant cognitive deficit does not necessarily preclude rational decision-making in all aspects of a person’s life. In a similar vein, one cannot conclude incapacity solely on the basis of financial mismanagement or self-care deficits, as the person may be voluntarily incurring the known risks. The issue for the assessor is not whether the person’s actions or choices appear reasonable or will put them at increased risk, but whether the individual is able to understand critical information and appreciate the reasonably foreseeable consequences of his or her decisions or lack of them. The emphasis is on the quality of the decision-making process, not the actual course of action in which a person engages. This requires exploration of the particular line of reasoning employed by the person in making decisions, and whether or not those decisions are consistent with a personal belief system, known values and reality.

The SDA sets out a two-part definition of mental capacity in that the person must have the ability to understand information relevant for making decisions, and in addition, show the ability to appreciate the consequences of a decision or lack of a decision. The crux of the matter is to distinguish between decisions that are poorly informed, foolish, risky or socially deviant: as opposed to decisions that are the product of an impaired decision-making process.

• Is your loved one no longer capable of managing their own finances and property because they are:

• unable to understand how to manage their finances?

• unable to appreciate the consequences of mismanagement?

• vulnerable to exploitation by others?

A capacity assessment with a determination of ‘incapable’ will result in the office of the Public Guardian taking over the management of their property.

Once the file is opened by the Public Guardian, family members or friends can apply to manage the property on the person’s behalf. We will help you to understand the process and process the paperwork to ensure delivery to Office of the Public Guardian.

• In Ontario, a finding of incapacity relates to certain types of decisions. For example, a person who is found mentally incapable of managing their property or finances is not necessarily incapable of making decisions regarding their personal care.

• A person is incapable of managing property if they are not able to understand information that is relevant to making a decision in the management of their property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

• A person is incapable of personal care if they are not able to understand information that is relevant to making a decision concerning their own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

• Yes. An assessment cannot be done if the person for whom it is proposed refuses, unless a court order has been obtained. A court order would be necessary to override the person’s refusal.

• If the capacity assessment resulted in the appointment of a guardian of property but no order has been made by a court, the person assessed may ask the Consent and Capacity Board to review the finding. Information about the review process can be obtained from the Consent and Capacity Board at 1-866-777-7391 or by accessing the board’s website at: www.ccboard.on.ca.

• If the assessment is being used in a court proceeding, the person may make his or her objections known during the court proceeding.

• Legal advice should be obtained regarding an appeal of a court order.

• Capacity Assessors set their own rates. The rates tend to vary according to the occupational group to which the assessor belongs. Rates include collection of data, interviewing, review of materials received, travel, time required to complete the assessment and the related forms and other administrative costs. Rates start at $1300 plus HST.

• In most cases, the person requesting the assessment is responsible for paying the assessor.

• There is a Financial Assistance Program available to cover the cost of an assessment in situations where an individual (not an institution or agency) is requesting it and cannot afford the fees. Applications for financial assistance can be obtained by contacting the Capacity Assessment Office.

• The Capacity Assessment Office will notify the requester when assistance has been approved or denied.