Navigating the different tests for mental capacity and who assesses what, where, when and how, are questions that can be much more complex than many of us assume.
In general terms, who decides whether a person is capable depends on what the decision is that needs to be made. This is because each task we do in our day-to-day lives and the decisions we make, each require a varying level of understanding and knowledge. This is why, at law, we consider capacity as a “task-specific” question. What this means is that the decision a person is making (or being asked to make), will ultimately determine who will assess their capacity or authority to make it.
By way of example, for someone to have capacity to make a will, the person must understand the nature of the act and its effect. They must also understand the extent of the property of which he or she is disposing and be able to appreciate and comprehend the various claims that might be given effect to through the will (e.g., claims of dependents, etc.). In such circumstances, capacity is highly fact specific.
The following are common circumstances were questions of capacity arise.
- Wills and powers of attorney
A lawyer who gets instructions to prepare a will or a power of attorney will assess whether the person giving the instructions has the capacity to do so. An assessment of the person’s capacity by a third party is not usually required, but the lawyer may suggest an assessment in order to protect the will or power of attorney from future challenges.
- ‘Activating’ a continuing power of attorney for property
A continuing power of attorney for property (“CPOA”) is effective upon signing unless it states otherwise. This means that the attorney has authority to act under it immediately, as long as it is otherwise valid.
The CPOA can state that it is effective only upon ‘incapacity,’ and if nothing more is added, a designated ‘capacity assessor,’ as defined under the Substitute Decisions Act, 1992 (“SDA”), must determine that the individual is incapable of managing property before the attorney can act. A letter from the family doctor stating that the individual is incapable is not enough.
- Capacity to make health care decisions
For treatment decisions, the treating physician or health care professional will assess for capacity to consent to treatment under the Health Care Consent Act, 1996 (“HCCA”). A capacity assessment by a designated capacity assessor is not required. Someone found incapable of consenting to treatment under the HCCA may apply to the Consent and Capacity Board for a review of the health care professional’s decision. A power of attorney for personal care (POAPC) is effective only if and when the grantee is incapable.
- Appointment of a guardian
A person who has no power of attorney and lacks capacity will require a guardian.
There are two ways for a guardian of property to be appointed. First, the court can make a finding that the person is incapable based on the evidence before the court, which may include a capacity assessment. Second, the Public Guardian and Trustee can become a guardian of property automatically. Under the SDA, a person may be assessed by a capacity assessor for the purposes of “statutory guardianship”. If the capacity assessor declares the individual incapable, the Public Guardian and Trustee is the individual’s guardian of property as soon as the certificate of incapacity is received from the assessor. A family member can then apply to replace the Public Guardian and Trustee as statutory guardian.
The Public Guardian and Trustee will also act as guardian where a treating physician finds a patient in a psychiatric facility incapable of managing property either upon admission or discharge, and notifies the Office of the Public Guardian and Trustee of the finding.
Only the court can appoint a guardian of the person if an individual lacks capacity to make treatment or personal decisions and he or she did not execute a power of attorney for personal care before becoming incapable.
