Capacity Assessment: Ontario

• Author: Michel Silberfeld
• Pages: 1063-1078

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CHAPTER 49

Capacity Assessment:

Ontario

Michel Silberfeld

I. INTRODUCTION

In order for an individual to make a legally binding decision she must have the requisite legal capacity

to do so. Capacity is not a state that one either has or does not have, it depends on the specic circum-

stances and the particular decision the individual is to make as to whether or not there is the requisite

capacity. Simply put, capacity is the ability to understand the information around the decision to be

made, and to appreciate the consequences of making one decision over another. e type of decision will

determine what level of capacity is required. As a starting point, the law always presumes that adults are

capable of making their own decisions.

II. CAPACITY DEFINED

Although there is in law a presumption of capacity, it is accepted that there are those individuals who

require the assistance of a substitute decision maker because their own ability to make decisions is im-

paired in a signicant way. e threshold for determining capacity remains imprecise and is case de-

pendent. When the capacity of an individual has been called into question, the determination of capacity

is made in relation to a specic functional task and the examination of capacity requires the evaluation

of how a person goes about making a specic decision.

e law on capacity to make decisions rests essentially on two components. To be capable, an indi-

vidual must:

• Understand the information around the decision in question — this is an objective cognitive process.

• Appreciate the consequences of making a decision or of failing to make a decision — this is a sub-

jective assessment.

e objective behind the legal policy around decision-making capacity is to protect individual au-

tonomy and to preserve freedom of choice as much as possible while at the same time protecting those

individuals who are vulnerable from making decisions when they are not able to do so.

A. Classes of Decision

e determination of capacity is situation dependent and the law has deemed that dierent types of

decision require dierent levels of capacity. So, for example, the level of capacity required to give a valid

consent to a very simple medical procedure would be very low, meaning that individuals who are sub-

stantially compromised in many ways may still be able to make a lawful decision on their own behalf.

e standard with regard to the capacity to enter into a legally binding contract, or make a valid will, will

be higher because the consequences of a lack of sucient capacity are so much more signicant.

Michel Silberfeld

In Ontario the law species a number of dierent decision-making areas where capacity is specic-

ally relevant and where the level of capacity required for the relevant decision may be dierent.

i. Capacity to manage property

A person is incapable of managing property if the person is “not able to understand information that is

relevant to making a decision in the management of his or her property, or is not able to appreciate the

reasonably foreseeable consequences of a decision or lack of decision” (Substitute Decisions Act, s. 6). De-

termining capacity in this context then requires a specic investigation into the individual’s understand-

ing of managing his property, which may be a relatively complex process.

ii. Capacity to grant a continuing power of attorney

A person is capable of granting a continuing power of attorney (which is a power of attorney that con-

tinues to apply where the grantor becomes incapable) if he knows what kind of property he has and its

approximate value. e individual must also be aware of the obligations he owes to dependents. Given

the eect of granting a power of attorney, the individual must understand that that the attorney will be

able to do on his behalf anything in respect to property that he could do if he was capable, except make

a will, subject to the conditions and restrictions set out in the power of attorney. e individual must

also have the capacity to understand that the attorney he appoints must account for any dealings with

the property and that the power of attorney can be revoked by the grantor so long as he is capable. It is

also crucial that the individual appreciate the possibility that the attorney could misuse the authority

given to her and that the overall value of the property may decline while being managed by the attorney

(Substitute Decisions Act, s. 8(1)).

Because the question of capacity is always relative to context and to the particular demands of the

decision in question, the law expressly states that even where an individual is not capable of managing

his own property, it may be that that same individual is capable of granting a continuing power of at-

torney. is is so precisely because the issues that must be understood and appreciated in the context of

granting a power of attorney are not nearly as complex as those for managing property (Substitute Deci-

sions Act, s. 9(1).

iii. Capacity for personal care

A person is incapable of making decisions regarding her personal care if she is not “able to understand

information that is relevant to making a decision concerning his or her own health care, nutrition, shel-

ter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a

decision or lack of decision” (Substitute Decisions Act, s. 45).

iv. Capacity to give power of attorney for personal care

According to the Substitute Decisions Act, a person is capable of granting a power of attorney for personal

care if the person:

a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s

welfare; a nd

b) appreciates that the person may need to have the proposed attorney make decisions for the person

(s. 47(1)).