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Dealing with Capacity Issues: What to do When the Mental Capacity of a Loved One is in Question

An American teenager made headlines around the world when he suffered from a soccer related accident that caused a serious brain injury. A novel side effect was when the young man regain consciousness, the unilingual English speaker was suddenly fluent in Spanish.

Sadly, many family members face serious mental capacity issues as a result of injury, illness or old age and that render the individual unable to make important life decisions for himself or herself. For their family members, it is hard to know where to turn for help.

In some cases, a valid designated power of attorney gives authority to another person to take over decision-making for the mentally incapacitated individual. This blog post will address what to do when there is no valid power or attorney in place.

Two Types of Decisions

In Ontario, a finding of incapacity relates to two primary types of decisions: property and personal care. A person who is mentally incapacitated for property determinations may not be mentally incapacitated for the purpose of personal care.

Mental Incapacity for Property

A person is incapable of managing property if he or she is unable to understand relevant information or appreciate the reasonably foreseeable consequences when making a financial decision. For example, the individual is unable to manage purchase or sale of consumer goods, basic banking, personal investments, buying and selling real estate, etc.

Mental Incapacity for Personal Care

A person is incapable of personal care if he or she cannot understand information that is relevant to making a decision concerning their person, such as about health care or medical treatment, including whether to pursue certain types of treatment.

When is a Capacity Assessment Required?

If an individual does not have a valid power of attorney and becomes incapable of making personal or financial decisions, another person may have to be given special legal authority to make decisions on the person’s behalf. This authority is called guardianship.

Before guardianship authority may be assigned, it must be determined whether the person is, in fact, mentally incapable.

In certain circumstances, which are outlined out in the Substitute Decisions Act (the “SDA”), a designated capacity assessor is the only professional who is authorized by law to make this determination. For example, a guardian of property may only be appointed to manage an incapable person’s finances without a court hearing if a capacity assessor has assessed the person and found him or her to be incapable.

An assessment of mental capacity for any purpose other than those specified in the SDA need not be performed by a designated capacity assessor. In situations not covered by the Act, another professional may be able to provide an opinion about capacity for that particular purpose. This may be less intrusive and less costly option. For example, many health care decisions fall under the Health Care Consent Act and can be made by a spouse, relative or other appointed person.

Rights of the Alleged Mentally Incapacitated Individual

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

If the capacity assessment resulted in the appointment of a guardian of property that the alleged incapacitated person disagrees with and no court order has been made, the person assessed may ask the Consent and Capacity Board to review the finding. 

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

Mental Incapacity Determinations

In KAL (Re), 2016 CanLII 68775 (ON CCB), KAL (name changed to initials to protect KAL’s privacy)., KAL’s daughter, RL, contacted a social worker and qualified capacity assessor under the SDA for a capacity assessment of KAL for management of property on January 16, 2016. KAL cooperated fully with the assessment. Shortly thereafter, the assessor rendered his Report and a Certificate of Incapacity, which triggered the Ontario Public Guardian and Trustee (“PGT”) to assume management of KAL’s property. KAL applied to the Board to review the incapacity finding.

Prior to RL requesting the assessment, KAL had incurred significant costs as a result of a gambling addiction and credit card debt. However, that behavior had stopped in 2014 and at the time of the hearing in 2016, KAL had incurred little additional debt since 2014.

The Board overturned the assessor’s finding of incapacity as it determined that the assessor had not appropriately tested KAL’s ability to understand relevant information, and had not gathered any clinical information regarding her mental condition. At the hearing, KAL’s cognitive understanding was intact and her memory was fair. The evidence did not establish that KAL was unable to understand information relevant to making decisions about her property. Instead, she seemed to have a very good understanding of her financial position and the need to curtail her spending.

Abuse of Power of Attorney

Due to the extensive legal powers given under a Power of Attorney for Property and its potential for misuse, it is important that your Power of Attorney for Property is drafted to best protect your interests and reflect your wishes. If someone is misusing the authority given to them under a Power of Attorney, there are processes to ensure these people are not taken advantage of – whether through the courts or otherwise. These cases are fact specific and experienced legal counsel can help you determine the best course of action in your particular circusmtances.

Donnell Law Group - Wills & Estates Lawyers, Family Lawyers, Litigation Counsel

If you are concerned about a loved one’s mental capacity, contact a trusted estate lawyer right away. At Donnell Law Group, we have tremendous experience as Wills and estates lawyers and as family lawyers. We help families plan and address legally difficult situations. Call today at 1-888-307-9991.


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