Capacity

Ontario law presumes that an adult individual has capacity (mental ability) to make their own decisions.

Some indications that a person might not have the mental capacity to make decisions is if:

• The individual does not understand information that is relevant to the decision making process;
• The individual does not understand the potential consequences of their decisions

A decision-maker may need to be act for a person who may not have capacity to make their own decisions and this person would have these authority to do this through a guardianship application or a power of attorney (POA).

Assessing Capacity

Capacity can be assessed through a formal assessment (testing, aka a “capacity assessment”) completed by various professionals (experts) depending on the scenario. For instance:

The Ontario Public and Guardian Trustee (OPGT) governs “assessors” who have deemed to have the professional skill required to assess mental capacity. Here is a list of government approved assessors.  

If you are interested in requesting a formal assessment for someone or yourself:

1. Directly contact an assessor to find one appropriate for you. Whether an assessor may be appropriate might depend on affordability, their availability, geographical area they work in, and their area of expertise
2. Be able to explain to the assessor what type and purpose of the assessment you are looking for. For example,
   1.  An assessment for evidence in court;
   2. An assessment for a guardianship application
3. If an assessment for a guardian of property application, fill out the “Request for Capacity Assessment Form” and hand it to the chosen assessor.

It is important to note that you cannot force someone to undergo a mental capacity assessment if they do not wish to undergo one. It must be done voluntarily. The only exception to this is if the assessment has been court-ordered (meaning a judge has ruled that an assessment must take place).

What if I am concerned about someone’s well-being?

If it is an emergent and critical scenario that needs to be dealt with immediately, please call 9-1-1.

If this scenario does not need to be addressed right at this moment, then the following options are available:

• Invoke the POA or apply for guardianship for property or personal care
• Request a formal capacity assessment to be completed
• Contact the Ontario Public and Guardian Trustee to investigate
• Speak to a lawyer (at Gale Law we are knowledgeable in capacity disputes)