Capacity Assessment Workshop

 

With the co-operation of the presenter, Elaine Atchison, we have put together this guide and hope it will be a helpful introduction to this important topic.

 

CAPACITY ASSESSMENTS UNDER ONTARIO'S SUBSTITUTE DECISIONS ACT
Presentation by Elaine Atchison, Senior Program Co-ordinator for the Capacity Assessment Office (CAO), Ontario Ministry of Attorney General.

How families and friends need to plan for how decisions will be made by/for vulnerable persons regarding their property and personal care. Families of persons whose capacity might be doubted are encouraged to plan ahead and explore all possible alternatives to letting decisions fall, by default, into the control of the Office of the Public Guardian and Trustee.

 

Key Ideas
"Capacity Assessments are legal assessments of a person’s capacity to understand information that is relevant to making a decision or to appreciate the reasonably foreseeable consequences of a decision or a lack of decision regarding their property (finances) and/or any of the six domains of personal care (health care, nutrition, shelter, clothing, hygiene or safety)....
"A basic tenet of Ontario's SDA is that guardianship should be a last resort when nothing short of guardianship will meet the decisional needs of an incapable person."

 

Elaine invites callers with questions about these issues to call her assistant, Carol Wilson. They will try to respond promptly and provide information relevant to the requester's needs.

Elaine Atchison
Sr. Program Co-ordinator
Capacity Assessment Office
Phone: 416 327 6424
Toll Free: 1 866 521 1033
Fax:     416 327 6724
elaine.atchison@jus.gov.on.ca

 

What is Capacity Assessment?
Capacity Assessment is the formal assessment of a person's mental capacity to make decisions about property and personal care. Under the Substitute Decisions Act of Ontario, many situations require capacity assessments to be conducted by specially qualified assessors who must follow specific guidelines.

The Substitute Decisions Act deals with

·                  powers of attorney

·                  guardianship

Substitute Decisions Act, 1992, S.O. 1992, c. 30
Available online at: www.e-laws.gov.on.ca

 

The Capacity Assessment Office is responsible for the training of capacity assessors, providing financial assistance for those unable to pay the full cost of a required assessment and the development of the assessment guidelines.  http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity.asp

The Capacity Assessment Office: Questions and Answers

http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacityoffice.asp

 

1.     What does the "Capacity Assessment Office" do?

2.     What is a 'capacity assessor'?

3.     Who is eligible to become a capacity assessor?

4.     What is the process for being designated a capacity assessor?

5.     In what circumstances would a capacity assessor's services be required?

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

7.     How is mental incapacity defined?

8.     How is capacity assessed?

9.     Do capacity assessors work for the government?

10. Do capacity assessors have particular areas of expertise?

11. What do capacity assessors charge?

12. Who pays the assessor?

13. Will the Capacity Assessment Office arrange assessments?

14. What should I consider when selecting an assessor?

15. Who oversees the conduct of assessors?

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

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

18. How do I obtain the list of capacity assessors?

  1. Where can I get more detailed information about capacity assessments?



Capacity Assessment Guidelines
http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-05/guide-0505.pdf

 

The Role of the Office of the Public Guardian and Trustee

http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/overview.asp

The Office of the Public Guardian and Trustee ("OPGT") delivers a unique and diverse range of services that safeguard the legal, personal and financial interests of private individuals and estates. It also plays an important role in monitoring the activities of charities in Ontario. Operating within the Family Justice Services Division of the Ministry of the Attorney General, the OPGT has approximately 300 staff operating through offices in six locations throughout Ontario. Services are provided by multi-disciplinary teams of dedicated staff with experience in the health care, social work and financial planning fields. They receive professional support from lawyers, accountants and investigators. A brief description of many of the services offered by the OPGT is set out below—in protecting the rights and interests of mentally incapable adults.

The OPGT website has various useful brochures on this website including information about Capacity Assessment; a Guide to the Substitute Decisions Act; Power of Attorney kits and information about the various roles of the Public Guardian and Trustee. http://www.attorneygeneral.jus.gov.on.ca/html/PGT/pgthome.htm

Conducting Investigations

The OPGT will conduct an investigation when it receives information that an individual may be incapable and at risk of suffering serious financial or personal harm and no alternative solution is available. An investigation may result in the OPGT asking the court for permission to make decisions on the person's behalf on a temporary basis.

 

Managing Finances

The OPGT manages the financial affairs of incapable people who have no one else who is authorized to do so. In this role, which is called "guardian of property", the OPGT makes all the financial decisions and transactions that these individuals would otherwise handle themselves. This includes receiving and depositing income, making investments, maintaining and selling property, applying for benefits, filing tax returns, paying bills and acting in legal proceedings if required.

 

Making Decisions About Personal Care

Very occasionally the court will order the OPGT to make decisions of a personal nature for an incapable person in order to protect him or her from extreme physical risk. Such cases typically involve the OPGT being given custodial authority in order to remove the individual from a situation of harm or to prevent access by third parties who are abusing the person. In this role the OPGT will usually also be responsible for making decisions about health care, place of residence, nutrition, hygiene and clothing.

 

Appointing Private Guardians of Property

The OPGT is authorized to appoint a client's relative to act in its place as guardian of property. The proposed guardian must submit an application which includes a detailed plan to show that the incapable person's finances will be handled appropriately.

 

Arranging Legal Representation in Capacity Proceedings

The OPGT locates lawyers to act for people who are the subject of a hearing about their mental capacity if ordered to do so by the court or by the Consent and Capacity Board.

 

Making Decisions About Treatment and About Admission to Long-Term Care

The OPGT is responsible for making decisions on behalf of incapable people where medical treatment is proposed and there are no other people, such as a relative, who are available, capable and willing to do so. The OPGT provides a similar service when admission to a long-term care facility is proposed and it is not possible to obtain informed consent from another authorized person, such as a relative.

 

Reviewing Accounts 

The OPGT reviews accounts when they are submitted by private guardians of property and estate trustees to the court for approval. The OPGT then informs the guardian, estate trustee and the court of any issues or concerns which may need to be addressed.

 

Acting As Litigation Guardian or Legal Representative

The OPGT may be appointed by the court to make decisions on behalf of individuals who are involved in lawsuits but who lack sufficient capacity to properly instruct a lawyer or to make decisions about significant issues such as a potential settlement. The OPGT acts in this role - which is referred to as 'Litigation Guardian' - only in situations where there are no suitable alternatives.

The OPGT may also be appointed to act as a 'Legal Representative' for a person who lacks capacity. In this role, the OPGT does not make decisions for the individual, but instead acts as an advocate, ensuring that the person's legal rights are protected and that his or her wishes are put before the court.

 

OTHER GUIDES

Various organizations, and support and advocacy groups have produced guides to this topic. Note that there is little reference to people who are developmentally disabled or living with autism.

 

We have found the chapter in Al Etmanski’s book, A Good Life (published by PLAN, 2000) about “Supported Decision-Making Agreements” very helpful. SDMAs, for example, can provide for a person to make decisions in advance about the type of care they want and about priorities in use of their resources kind of care they should receive—to come into effect at times when they may have diminished mental capacity. SDMAs should respect alternative modes of communication where relevant.

A practical guide to capacity and consent law of Ontario for health practitioners working with people with Alzheimer Disease. An excellent overview of how Health Care Consent Act and Substitute Decision Act work.     http://alzheimerott.org/graphics/center/consentlawe.pdf

Advocacy Centre for the Elderly.  ACE provides direct legal services to low-income seniors, public legal education, and engages in law reform activities. Useful information on issues affecting mainly seniors may be found at this site. http://www.advocacycentreelderly.org/

Alzheimer Society has produced “A Guide to Advanced Care Planning” –useful for discussing the creation of Power of Attorney documents.  http://www.alzheimerontario.org/

Canadian Legal Information Institute. This website posts court cases including Supreme Court, Provincial Courts, and Consent and Capacity Board decisions. http://canlii.org/ 

Canadian Mental Health Association, Ontario

http://www.ontario.cmha.ca/content/mental_health_system/legislation/substitute_decisions_act.asp

Consent and Capacity/Substitute Decision-Making: a basic account
http://www.advocacycentreelderly.org/pubs/poa/Consent_and_capacity_basics.pdf

Ministry of Health and Long Term Care site with an excellent publication on mental health law, “Rights and Responsibilitieshttp://www.health.gov.on.ca/english/public/pub/mental/rights.html