Capacity Assessments
This article is not legal or medical advice, and is intended to help educate you on SDA capacity assessments in Ontario.
There is a lot of misunderstandings and misinformation out there about what a capacity assessment is, what it entails, and what it can do. This is not an exhaustive list, but provides a brief overview of the different types of assessments and answers frequently asked questions.
A person is always assumed capable until there is sufficient evidence to indicate otherwise. These assessments are not meant for a person to have to prove they are capable. They are also not designed to reduce or prevent actions that you might think are risky or a bad idea. Capacity assessments are a last resort, and other less restrictive options should be explored before requesting a capacity assessment; therefore, if there is power of attorney (POA) these assessments cannot take place. They are not considered “best interest” assessments and are not designed to be protective “just in case.”
Capacity Assessors
In Ontario, a designated capacity assessor is an independent assessor who is selected and trained by the Capacity Assessment Office (CAO). They receive intensive initial training, followed by ongoing training throughout the year, and a redesignation process every 2 years. Capacity assessors are selected from the following professions:
doctors
nurses
psychologists
social workers
occupational therapists
Capacity Assessments for Property
A s.16 capacity assessment for property is a legal assessment to determine a person’s mental capacity to manage their finances under the Substitute Decision Act (SDA, 1992) for the purpose of appointing a statutory guardian. This is a voluntary assessment that can be requested by the person directly or by someone else (such as a friend, family member, lawyer, case manager, or doctor).
A s.79 capacity assessment for property is a court ordered assessment, in which the person cannot refuse to be assessed.
s.45 Capacity Assessment for Personal Care
A s.45 capacity assessment for personal care can be conducted as part of a court process to seek guardianship. If you are considering seeking guardianship, it is important to contact a lawyer to discuss the process and what is required before contacting an assessor.
The categories that can be assessed in these assessments are:
Healthcare
Clothing
Nutrition
Hygiene
Shelter
Safety
s.20 Capacity Assessment to Terminate Statutory Guardianship of Property
If a person has been deemed incapable by a s.16 and has a statutory guardian, they can seek a re-assessment after 6 months. These are typically sought after a situation has changed. For example, a person may have experienced cognitive changes after a car accident and been found incapable, but has undergone treatment and has since improved their cognition sufficiently to resume management of their finances.
The Process
So how does a capacity assessment actually work? Here’s a quick rundown of the process from start to finish:
Screening: Capacity assessors always perform their own thorough screening to learn more about the situation and determine the appropriateness of a capacity assessment, even if you have funding approved through the CAO. Some of these questions often include:
If a capacity assessment is deemed the appropriate fit, whoever is requesting the assessment (aka the Requester) must submit a Form 4 to the assessor to formally begin the process. A Service Agreement will be provided to the Requester via DocHub for electronic signature, at which time payment is also due. If the person being assessed (aka the client) refuses, a refund minus the work completed to date will be provided.
If there are financial difficulties, an individual self-requesting an assessment can apply to the Financial Assistance Program through the CAO. If they are approved, provide your CAO file number to the assessor and they will bill the CAO directly.
Information Gathering & Scheduling: The assessor will then connect with the Requester to obtain more detailed information and schedule the interview.
Assessment Interview: The assessor will meet with the client. The interview takes place between the assessor and the client, although a client can request the presence of a support person. The assessor will always perform Rights Advice, where they explain who they are, the purpose of the assessment, the potential outcomes of the assessment, and the fact that the assessment is voluntary. The assessor will ask the client questions about their situation, knowledge, and skills.
Informant Interview: In some cases, your assessor may speak with relevant people in your life, such as your family or support person, to help inform their decision.
Records Review: Your assessor may request relevant records (such as admission notes, diagnostic reports, bank statements, etc) to help inform their decision.
Report: The assessor will complete a Form A and Form C. These forms describe the background information, assessment interview, any informant interviews or records reviewed, and discuss the assessor’s finding and its rationale in accordance with the SDA criteria.
If found:
A. Capable: essentially, nothing changes. The PGT will not become the person’s statutory guardian and only the person assessed receives a copy of the report.
B. Incapable: the client and Public Guardian & Trustee will receive a copy of the report. The PGT become the person’s statutory guardian and take over management of their finances. Once a file is opened, someone who is interested in taking over this guardianship can petition the PGT to do so.
If the client is unsatisfied with the findings of their assessment, they can appeal the decision to the Consent and Capacity Board (CCB).
Fees
Rates vary from assessor to assessor, but are generally calculated based on the time involved in the process and any expenses incurred, such as travel time. Capacity assessments typically start at a minimum of $1, 000 in Ontario as of 2024.
Other Options
You may be reading this and thinking, “I was told I needed a capacity assessment, but I don’t want guardianship!” or “I was told I need a capacity assessment, but I have POA!”. This is a very common situation, and usually there are a few different solutions when capacity assessments are not the appropriate fit. Here are a few common options:
If you are seeking information as to whether a person can make decisions, you are likely seeking a Letter of Opinion. This is a clinical assessment to determine a person’s current cognition. These can typically be performed by medical professionals such as a doctor, neurologist, or neuropsychologist. You may require a referral for this test. Designated assessors under the SDA do not have training in their role as an assessor to perform these assessments, but may have the requisite training and skills in their other clinical roles.
If you are seeking to activate your POA documents, there are likely 2 routes:
A Letter of Opinion
Your POA has a “trigger clause”, which specifically states that a capacity assessment performed by a certified/designated capacity assessor to determine capacity is required to enact the POA. This would entail a s.9(3) capacity assessment.
If you are concerned about a suspected or confirmed emergency, contact PGT Investigations.
If you are seeking for additional support for yourself or someone else to manage their situation, but are not seeking guardianship, there are other less restrictive alternatives to explore. These include POAs, trustee programs (such as through ODSP or community programs), or setting up automatic financial processes.
