A capacity assessment is a legal test to decide whether a person has the mental competence to make a decision.
The place to start is with the simple concept that everyone is capable of making decisions for themselves. We present the decision to be made and relevant information to the person. Only when we suspect that the person is not able to understand the information or use their reasoning ability do we consider assessing their capacity.
Only when we suspect that the person is not able to understand the information or use their reasoning ability do we consider assessing their capacity.
Capacity is assessed by different people depending on the situation. Below is a list of common situations when capacity is typically assessed.
Contracts
In order for a contract to be valid, the people making the contract must have the mental competence to do so. There is no formal assessment process. Each person evaluates the other person’s ability to make the contract. The law presumes that it is in a person’s own best interest to ensure that he or she is contracting with a mentally capable person. There are various remedies in law if someone used misrepresentation, fraud, undue influence or other means to take advantage of another person’s incapacity.
Wills
Making a will is probably the most stringent test in law for mental competence. Competence to make a will is called “testamentary capacity.” Anyone helping a person to make a will assesses the person’s testamentary capacity, typically a lawyer.
Powers of Attorney
A person can name someone as their substitute decision maker to manage their property or personal care in an official document called a power of attorney. These do not have to be drawn up by a lawyer, though they typically are done together with a will. The lawyer or whoever is helping to draw up those documents considers the person’s ability to so. A person may no longer be able to make decisions about their finances, for instance, but they may still have the ability to appoint someone else to do so on their behalf.
To Activate a Power of Attorney for Property
Typically, powers of attorney for property are activated when they are signed. However, a person may decide that they don’t want the power to be effective immediately and so they may choose a “trigger.” In that case, the document will state that it will come into effect either on a specific date, or once the person is incapable of managing their property. The person’s capacity should be assessed by a capacity assessor. Or, the document may also state who should evaluate the person’s capacity. The person can name anyone to evaluate capacity, such as their spouse, doctor, or lawyer.
To Activate a Power of Attorney for Personal Care
Powers of attorney for personal care are never effective upon signing. They only become effective once the person loses capacity to manage their personal care. The document may specify who should assess the person’s capacity. If it does not, the attorney named in the document decides if the person is still capable. If the document states that incapacity must be “confirmed,” the attorney hires an assessor to evaluate capacity at the time the attorney feels the person is no longer able to make decisions.
Powers of attorney for personal care are never effective upon signing.
Health Care Decisions
Health care decisions are different from personal care decisions even if the person has a personal care attorney. Only the doctor who proposes treatment assesses the patient’s capacity to make an informed decision about the treatment. If the doctor does not believe the person can make the decision, the doctor has to follow a list prescribed by the law to find a substitute decision maker. An attorney for personal care is on that list.
Move to a Long Term Care Facility & Personal Assistance Services
Prior to applying to a long term care facility, a person’s capacity to make that decision is assessed by an evaluator. When someone is living in a long term care facility and wants personal assistance services, an evaluator also decides on the person’s capacity to consent to those services. The Community Care Access Centre (“CCAC”) in the person’s area will coordinate evaluators trained to make these assessments.
Who Evaluates Capacity?
Three types of assessors are defined by law:
- Health professionals
- Evaluators
- Capacity Assessors
Each of these must be members of certain professions that have their own regulatory bodies called “Colleges.” They are trained in capacity assessments and are governed by law and regulations. Each of these only makes assessments where indicated by law.
Attorneys for property or personal care are not trained in how to make capacity assessments. However, they are governed by the law, which explains what the legal test is for capacity for each of these categories, and how the attorney is supposed to make decisions for the person.
The Right to Refuse an Assessment
A person must be told that a capacity assessment has been scheduled. They also must be told of the potential consequences and have the right to refuse an assessment.
For health care decisions, the patient does not have the right to refuse assessment. But if a doctor decides the patient is incapable, they must tell the patient and notify a rights advisor so that the patient may receive advice on their legal right to appeal the decision to the Consent and Capacity Board. No treatment may begin if an application to the Board is made.
Conclusion
Determining when capacity is to be assessed and by whom can be complicated. A good starting point is identifying what type of decision is to be made – treatment, property, or personal care. This tells you whether a doctor makes the assessment, or whether you need to find out if there is a power of attorney. There are many other scenarios when capacity is typically assessed that could not be covered here. It is always a good idea to consult a capacity lawyer.
PLEASE NOTE: The information provided in this article is for informational purposes only. It is general information and should not be taken to be a full and accurate discussion of the law on this topic, nor is it intended to be legal advice or to be relied upon as legal advice by the reader.
If you have questions about capacity, you may contact the author:
Areta N. Lloyd
In Association With:
Elder Law Group
About the author
