Ontario law operates on the presumption that adults possess the capacity to make decisions unless proven otherwise. An individual is deemed incapable of decision-making if they fail to comprehend the pertinent information related to the decision at hand, or if they lack an understanding of the consequences associated with either making or abstaining from making that decision, or both.

 What is a Capacity Assessment?

A capacity assessment is a formal evaluation of an individual's mental capacity to make decisions regarding property and personal care. It is conducted by a qualified assessor in accordance with statutory requirements. The Substitute Decisions Act, 1992, S.O. 1992, c. 30 governs the process for capacity assessments. 

Scenarios Where You May Need a Capacity Assessment

A qualified professional can determine whether someone is mentally capable in various situations:
  • If an individual is about to undergo medical treatment, their healthcare practitioner must make the determination.
  • When someone needs admission to a long-term care facility, an evaluator appointed by the Local Health Integration Network must decide.
  • In cases where an individual is a patient in a psychiatric facility, a physician must make the assessment.
  • If an individual is involved in a court proceeding, a judge must determine their capacity based on medical and expert evidence. 

Who can Request a Capacity Assessment?

Anyone can arrange a capacity assessment for someone else. However, if the person refuses the assessment, it cannot be conducted. Nevertheless, if the assessment is court-ordered, it overrides the individual's refusal.

To request a Formal Assessment:

  1. Contact the assessor(s) directly and consider asking about the following:
    • the geographic area in which the assessor works;
    • the assessor’s availability;
    • the assessor’s particular area of expertise;
    • the fees proposed by the assessor; and
    • the language(s) spoken by the assessor if the person for whom the assessment is proposed does not speak fluent English.
  2. When you contact the assessor, you will need to clearly explain what kind of assessment you want the assessor to conduct:
    • whether the assessor will need to examine the person’s ability to make property decisions, personal care decisions, or both;
    • if the assessor will need to consider whether the person can grant a power of attorney; and
    • if the purpose of the assessment is to provide evidence in a court proceeding.
  3. Complete the “Request for a Capacity Assessment” form and give it to the chosen assessor if this is a capacity assessment for property.

Finances and Property

A capacity assessment, performed by a capacity assessor, can be a useful tool in determining whether someone is incapable of managing their property, or of granting or revoking a power of attorney. The capacity assessor’s decisions can be legally binding if they:
  • do a section 16 assessment to determine whether the Public Guardian and Trustee should be appointed to make a person’s financial decisions for them; or
  • assess a person who wants to control their own financial affairs: (1) after appointing someone else to do it or (2) after the Public Guardian and Trustee have been appointed as their guardian.

Personal Care

A judge can assess a person's capacity to make decisions about their personal care when someone applies to be their guardian for personal care. A capacity assessment may be a component of this process. Personal care encompasses healthcare, housing, and various aspects of life such as meals, clothing, safety, and hygiene.

Health Care

Consent is typically necessary for most healthcare services or facility admissions, except in emergency situations. If an individual lacks mental capacity, a health practitioner or Home and Community Care Support Services must seek a substitute decision-maker, often a family member, to make decisions on their behalf. A person appointed as guardian or attorney for personal care holds priority in such situations. NOTE: If no one is available or there is a conflict between decision-makers, then the Office of the Public Guardian and Trustee will make the decision on the incapable person’s behalf.

 Who Can Conduct Capacity Assessments in Ontario?

In Ontario, a capacity assessor must be a member in good standing of one of the following regulatory bodies:
  • College of Physicians and Surgeons of Ontario
  • College of Psychologists of Ontario
  • Ontario College of Social Workers and Social Service Workers
  • College of Occupational Therapists of Ontario
  • College of Nurses of Ontario (Registered Nurse or Registered Nurse-Extended Class)
Qualified capacity assessors must successfully complete a training program provided by the Ministry of the Attorney General, maintain a minimum of $1,000,000 of professional liability insurance, and be in good standing with their professional college. To retain their designation, a capacity assessor must complete a minimum of 5 assessments within 2 years and actively participate in continuing education activities.

What Information Do Capacity Assessors Need?

When seeking the expertise of a capacity assessor or specialist to evaluate capacity, it is essential to provide them with comprehensive access to pertinent information and documentation that can shed light on the timeline of capacity or incapacity. This may include a range of documents, including but not limited to:
  • clinical notes and records maintained by treating physicians;
  • in instances where the assessment is intended for legal proceedings, all relevant pleadings and, depending on the specific circumstances, any affidavits that have been submitted;
  • access to available transcripts of examinations for discovery or cross-examinations; and
  • any pertinent files and notes prepared by the individual’s drafting solicitor(s).
This post was co-authored by Kelli Preston and Articling Student, Owais Hashmi.
“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
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