WHAT IS A CAPACITY ASSESSMENT?
A Capacity Assessment is a formal/legal assessment of whether a person is cognitively capable of making decisions regarding Property (finances) and Personal Care. A Capacity Assessor gets called upon to conduct a Capacity Assessment when a person over the age of 18 appears to be mentally incapable, or by Court Order if the person is under the age of 18 (this is sometimes the case in MVA settlements prior to age 18).
Also, if a person refuses to have a Capacity Assessment, they can be compelled by a Court Order if the Court deems that the assessment is necessary.
There are several steps in the process of conducting a Capacity Assessment:
- The assessor gathers information regarding the person's circumstances. This includes doing informant interviews, and reviewing medical and financial records.
- The assessor completes a personal interview with the person being assessed. Prior to this interview, the assessor must inform the person that he or she has the right to refuse. In other words, the person has to give voluntary consent or assent.
- The assessor makes a determination of Capacity and provides the report(s) on the forms prescribed under the SDA legislation.
- The assessor delivers the documents to the requester and the person who was assessed. The documents may be sent to an insurer in the event of a Motor Vehicle Accident (MVA) with the assessed person's permission or the permission of his or her guardian.
IKE LINDENBURGER was among the first 55 DESIGNATED CAPACITY ASSESSORS trained in 1994 under the Auspices of The Ontario Attorney General. Since that time, he has conducted numerous assessments under the SDA, as well as Letters of Opinion.
Definition of Capacity under the Substitute Decisions Act, Section 6: A person is incapable of managing:
If the person is not able to understand information that is relevant to making a decision in the management of his/her Property, Personal Care, or Granting of POAs, and is not able to appreciate the reasonable forseeable consequences of a decision or lack of decision, he or she will be deemed incapable under the SDA.
A Capacity Assessment in Ontario is based on cognitive ability and not functional ability. For example, a person may not be physically able to go to a bank (functional) but may be entirely capable of instructing someone else to go to the bank on behalf of the person (cognitive).
The above definition of Capacity is also used when providing Letters of Opinion that are not under the SDA, namely Testamentary Capacity (capacity to make a will), and Capacity to Instruct Legal Counsel.