Capacity Assessment

Letters of Opinion and Capacity Assessments

Experienced at the Consent and Capacity Board and Court Ordered Assessments

Do you know a person struggling to manage their finances and

  • Vulnerable to exploitation by others?
  • Unable to understand or appreciate the consequences of mismanagement?

An assessment will protect their assets IF they are incapable.

 

What is a Capacity Assessment and why would I need one?

A Power of Attorney (POA) for property allows a person you’ve chosen to manage your property and finances. You will decide if they can manage it from the moment the POA is signed, or at a time in the future when you are no longer mentally capable of “understanding or appreciating” the consequences of your decisions.

Estate and Real Estate Lawyers, accountants and financial brokers often engage a “capacity assessor for property” to ensure that the person “Understands and Appreciates” the consequences of their financial decisions. For example, if dementia may be in question, or a mental health issue such as depression or anxiety OR if a POA has a trigger that requires an assessment of incapacity before the document can become active, an assessor can provide an opinion of capable or incapable.

Are your finances and property in the right hands when you are no longer capable of managing them on your own?

Capacity Assessment for Property

If a person has a Power of Attorney (POA) for Property and it has a ‘trigger’ such that,

  • an assessment of ‘incapable’ is required before the attorney can act, or
  • even with the POA document in hand, your financial institution requires a letter of opinion stating that incapacity to manage property exists,

We can provide an assessment and/or the letter of opinion that lawyers and banks require, to recognize the authority of appointed person.

If a person does not have a Power of Attorney for Property:

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.


If a person does not have a Power of Attorney for Property:

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.

 

 

 

 

 

 

 

 

How is mental incapacity defined?

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.

When is a Capacity Assessor Needed?

When the person does not have a power of attorney

When a person is incapable of making personal care or financial/property decisions and does not have power of attorney, another person may be given the legal authority to make these decisions on their behalf. This authority is known as “guardianship.”

Before guardianship is assigned, it is up to the Capacity Assessor to determine if the individual is mentally capable of providing self-care. By law, a Designated Capacity Assessor is the only legal authority that can make these decisions, according to the Substitute Decisions Act. One example is that if a property owner (home or business) is found to be mentally incapable of handling their finances, a capacity assessor can designate a guardian to manage their personal finances. This can be done without court action.

When the person has a power of attorney

When a person has a power of attorney and it does not specify in the document that incapacity must be proven before the power of attorney can be used, the opinion of the capacity assessor is required to activate the existing power of attorney.

In what circumstances would someone other than a capacity assessor be required to perform an assessment?

There are certain types of assessments that capacity assessors do not do because the law provides a different way for them to be done. For example, the Health Care Consent Act states that if medical treatment is proposed for a person, it is up to the health professional who is proposing the treatment to decide if the person is capable of giving or refusing consent to the treatment. The same law requires that a determination of a person’s capacity to make a decision about admission to a long-term care facility may only be made by specific types of health professionals – called evaluators. Evaluators are usually available through the local Community Care Access Centre. Designated capacity assessors are not involved in these decisions.

How is capacity assessed?

Although it depends on the category of decision-making (e.g. finances, health care, shelter, etc.) that is being assessed and the level of cognitive functioning of the person being assessed, there are some general protocols that are followed in every assessment.

The assessor will try to determine whether the person’s understanding of the issues is factually accurate. For example, if the assessment is about capacity to manage finances, the assessor will determine whether the person can accurately identify their income, assets, debts and other financial involvements. The assessor will also assist the person by providing relevant information and testing the extent to which the person can retain, interpret and manipulate that information. The person’s responses are evaluated in order to determine whether they demonstrate an understanding of the information being discussed.

The choices the person is making (or neglecting to make) are also discussed in order to assess whether the person realizes the consequences of these choices and can explain the basis for them. Assessors do not infer incapacity simply because the person’s choices are extremely unusual or appear to be against their own interests or welfare. Similarly, the person’s capacity to appreciate the consequences of choices is evaluated in the context of the person’s particular lifestyle, values and beliefs. The only relevant issue is the person’s level of cognitive functioning and ability to reason and process information, not the merits of the choices the person makes. In other words, a capable person is entitled to make choices that may be “bad”.

How long does an investigation and court application usually take?

This depends entirely on the individual circumstances of the case. If the case is clear and the evidence readily available, the investigation may only take a short time. Preparing the materials for court and obtaining a date for a court hearing usually takes at least a few weeks.

In most cases, however, the situation is more complicated and requires the investigator to contact many people, visit the person who is alleged to be incapable, track down various leads and review different types of records. Sometimes third parties who have essential information are hard to reach or take a long time to respond to the investigator’s requests. The person’s condition or situation may appear to stabilize for a period during which the investigation will not be active. As a result, an investigation may remain open for a number of months.

Can the OPGT make decisions for the person while the situation is being investigated?

No. The OPGT does not have any right to make decisions for the person until a court appoints it as guardian.

What powers does the OPGT have when it is guardian?

This depends on the type of guardianship – property or personal care – and the directions that have been given by the court.

If the OPGT is only appointed as the guardian of property, it will be authorized to secure and manage the person’s assets and other financial resources but will not be able to make any personal care decisions. If the OPGT is appointed as the guardian of personal care it will usually be authorized to make decisions about matters such as medical treatment and housing. Guardianship of personal care may also include the right to make custodial decisions that involve the person being taken to a place of safety with the assistance of the police.

What do capacity assessors charge?

Capacity Assessors set their own hourly rates. The rates tend to vary according to the occupational group to which the assessor belongs. Rates range between $90 and $180 per hour, although some assessors do charge higher fees because of their expertise in a specialized field.

The total cost of the assessment will depend on a number of additional factors including the:

  • nature and complexity of the person’s condition;
    1. assessor’s experience in conducting assessments;
    2. time required to complete the assessment and the related forms; and
    3. expenses, including travel, that may be required.

Who pays the assessor?

In most cases, the person requesting the assessment is responsible for paying the assessor. For example, if a family member, a friend, or a caregiver requests the assessment, they would pay the assessor directly. If a guardian of property is then appointed for the person, the guardian can provide reimbursement for the costs of the assessment from the incapable person’s funds if there is sufficient money to do so.

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.

This assistance is available if:

  • the particular assessment required cannot, by law, be completed by anyone other than a designated capacity assessor;
  • the Capacity Assessment Office agrees that a capacity assessment is appropriate in the circumstances;
  • the person is able to self-request or family member requests, and person will not refuse the assessment, and
  • the individual requesting the assessment meets the financial criteria to be eligible for financial assistance.  To determine this, the requester will need to provide financial information about his/her own finances and submit a completed financial assistance application.

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

Does a person have the right to refuse a capacity assessment?

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.

What happens if the person assessed disagrees with a finding of incapacity?

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 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.

Summary

If there is no power of attorney in place and the person is assessed to be incapable, the Office of the Public Guardian and Trustee will make decisions until such time when an applicant assumes the responsibility. If there is a power of attorney and the person is assessed to be incapable, the person(s) named to be the guardians will assume their responsibilities.

For more information, please call 905.641.2111.