Overview

Ontario law assumes that adults are capable of making decisions until it is proven they are not capable.

A person is incapable of making a decision if they do not understand the information relevant to the decision or don’t understand the consequences of making or not making it, or both.

People can be capable of making one kind of decision, but not another, and their ability to make decisions can change over time.

You should plan for possible mental incapacity. For example, you should consider creating a power of attorney to make sure that your wishes are set down and followed should you become mentally incapable. Read more about powers of attorney and get a free kit to make your own.

Assessing mental capacity

A qualified professional can decide if someone is mentally capable or not in cases when someone:

  • is about to undergo medical treatment, their health care practitioner must decide
  • needs to be admitted to a long-term care facility, an evaluator appointed by the Local Health Integration Network must decide
  • is a patient in a psychiatric facility, a physician must decide
  • is involved in a court proceeding, a judge must decide if the person is incapable based on medical and expert evidence.

Finances and property

A capacity assessment, performed by a capacity assessor, can be a useful tool in determining whether someone is incapable of managing their property, or of granting or revoking a power of attorney.

The capacity assessor’s decisions can be legally binding if they:

  • do a section 16 assessment to determine whether the Public Guardian and Trustee should be appointed to make a person’s financial decisions for them
  • assess a person who wants to control their own financial affairs: (1) after appointing someone else to do it or (2) after the Public Guardian and Trustee has been appointed as their guardian. Read more in the Substitute Decisions Act 1992.

Personal care

A judge can determine a person’s capacity to make decisions about their personal care if someone is applying to be their guardian for personal care. A capacity assessment may be part of that process. Personal care can include health care, housing, and other aspects of your life such as meals, clothing, safety and hygiene.

Health care

Consent is required for most health care services or facility admissions, unless it is an emergency. If a person is not mentally capable, a health practitioner or Home and Community Care Support Services must turn to a substitute—usually a relative—for a decision. A person who has been appointed the guardian or attorney for personal care has priority.

If no one is available or there is a conflict between decision-makers, then the Office of the Public Guardian and Trustee will make the decision on the incapable person’s behalf.

Concern about someone's well-being

If you or someone else is in a crisis situation, go to the emergency department of a nearby hospital or call 911 immediately.

For non-emergency situations where you feel mental incapacity is putting someone at serious risk of harm, options include the following:

  • Contact community agencies that may be able to help. Ontario211 can help you find programs and services in your community.
  • Consider asking the court to appoint a guardian to make financial and personal care decisions.
  • Have a formal capacity assessment conducted.
  • Contact the Office of the Public Guardian and Trustee (OPGT). The OPGT may investigate if no alternative solution can be found. The OPGT has no authority to make decisions for the person during an investigation or while the matter is before the courts.

Important: Emergency services may be able to intervene if the person is at urgent risk.

Request a capacity assessment

To request a capacity assessment for you or someone else, you must contact an assessor directly.

Anyone can arrange a capacity assessment for someone else. However, if the request is to assess the person’s capacity to manage property and appoint the PGT, the requester must make enquiries and believe that the person to be assessed does not have a continuing power of attorney for property.

An assessment cannot be done if the person refuses the assessment. If the assessment is court-ordered, it overrides the person’s refusal.

The OPGT qualifies capacity assessors across Ontario whose job is to assess a person’s mental capacity. Learn about the procedures that capacity assessors need to follow when conducting assessments (PDF).

To request a formal assessment:

  1. Contact an assessor(s) directly and ask about their availability, fees and any areas of expertise they may have. Consider choosing an assessor who works in your geographic location. You can find information on the assessor’s areas of expertise and what languages they speak.
  2. When you contact the assessor, you will need to clearly explain what kind of assessment you want the assessor to conduct:
    • whether the assessor will need examine the person’s ability to make property decisions, personal care decisions, or both
    • if the assessor will need to consider whether the person can grant a power of attorney
    • if the purpose of the assessment is to provide evidence in a court proceeding
  3. Complete the “Request for a Capacity Assessment” form and give it to the chosen assessor if this is a capacity assessment for property.

Fees

Capacity Assessors set their own hourly or flat rates.

The total cost of the assessment will depend on several factors, including:

  • the nature and complexity of the person’s condition
  • the assessor’s experience in conducting assessments
  • the time required to complete the assessment and the related forms
  • the assessor’s expenses, including travel

In most cases, the person who requested the assessment must pay the assessor. For example, if a family member, friend or caregiver requests the assessment, they would pay the assessor directly.

Financial assistance

You can get financial assistance to cover the cost of an assessment if you cannot afford the fees. Financial assistance is available if:

  • the kind of assessment required cannot, by law, be completed by anyone other than a designated capacity assessor
  • the person or their family member requests the assessment, and the person will not refuse the assessment
  • the person requesting the assessment meets the financial criteria

Note

If you are already a client of the Public Guardian and Trustee, financial assistance through this program is not available. Please speak with the Client Representative assigned to your file.

Get an application for financial assistance by contacting the Capacity Assessment Office:

The Capacity Assessment Office will notify you if your application has been approved or declined.

Capacity assessors

Capacity assessors are health professionals that formally assess a person’s mental capacity to determine whether they are capable of making decisions about their property or personal care.

The following professions are eligible to be capacity assessors if they are selected, and attend and pass a specialized training course from the Capacity Assessment Office:

  • doctors
  • nurses
  • psychologists
  • social workers
  • occupational therapists

Find a list of capacity assessors in your area.

When someone is deemed incapable

If there is not a POA made in advance of becoming mentally incapable, family and friends may need to take additional steps such as asking the court to appoint someone as a guardian, or, the Public Guardian and Trustee could be appointed. What happens will depend on a person’s individual situation.

In some health care situations, a family member may be able to make a decision without any kind of formal appointment.

In some cases, where the court cannot identify anyone else to act on the mentally incapable person’s behalf, the Public Guardian and Trustee can be appointed as a last resort. The PGT becomes the guardian and works to make decisions on about the person’s property, and/or personal care.

Challenging an incapacity decision

Some kinds of incapacity decisions may be appealed, such as:

  • a decision by a capacity assessor, or a physician in a psychiatric facility, that a person is incapable of managing property and that the Public Guardian and Trustee should be appointed as their statutory guardian of property
  • a decision by a health care practitioner that a person is incapable of making choices about their own medical treatment
  • a decision by an evaluator that a person is incapable of making choices about admission to a long-term care facility

In other cases, such as a capacity assessment in a legal proceeding, you should contact a lawyer to advise you about what the assessment means and what your options are to oppose the assessor’s determination.

The Law Society Referral Service can help you find a lawyer. If you cannot afford a lawyer, Legal Aid Ontario may be able to provide you with financial assistance.

Learn more about appealing a capacity assessment from either:

Legal representation

Generally, an individual is responsible for arranging their own legal representation. In certain situations under the Substitute Decisions Act, 1992, the Office of the Public Guardian and Trustee may arrange legal representation. In certain situations under the Health Care Consent Act, 1996, Legal Aid Ontario may arrange legal representation. 

If a person does not have legal representation, and the case is under the:

If the Superior Court orders the PGT to arrange legal representation under the Substitute Decisions Act, 1992, counsel appearing on behalf of any of the parties are expected to notify the PGT as soon as possible and provide a copy of the judge’s endorsement or order to:

Legal fees & challenging legal fees

A person in a capacity case is responsible for all legal fees unless the person qualifies for legal aid.

A person has the right to challenge their legal fees.

If the person is deemed incapable of managing property, a guardian of property or an attorney under a continuing power of attorney for property can ask for an assessment or review of legal fees.

Resources