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Capacity (or decision-making capacity) refers to the legal ability of an individual to make decisions about their lives and give consent. All individuals over the age of 18 in Ontario are legally presumed to be capable of making their own decisions. This presumption can be rebutted by the facts of each particular case.
Incapacity means that an individual does not have the legal capacity required to make certain decisions, such as management of property, personal care, or healthcare decisions. An individual may be incapable due to a variety of reasons such as their age, cognitive impairment, mental illness, developmental disability, or even temporary conditions like unconsciousness.
There is no set test to determine capacity which can be applied in all situations. Capacity is time, situation, and task-specific. It can fluctuate based on the type of impending task and across a person’s lifetime.
Anyone with standing can request an evaluation.
In most cases, consent is required from the person being evaluated before it can be carried out. There are exceptions to the requirement of explicit consent in certain circumstances such as emergencies or if the court orders for the assessment.
Capacity evaluations can assess an individual’s capacity to…
- manage property;
- make personal care decisions;
- grant and revoke a Power of Attorney for Property or Personal Care;
- make or revoke a Will
- make a Codicil;
- make a testamentary designation;
- create a trust or gift;
- undertake real estate transactions;
- marry, separate, or divorce;
- reconcile;
- instruct counsel or sue;
- give evidence; and to
- enter into a retainer agreement, contract, and more.
If an individual lacks decision-making capacity, this will trigger the need to activate a power of attorney, and if there isn’t one set in place, the need to apply for guardianship.
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DISCLAIMER: This blog post should not be interpreted as legal advice for your specific situation, concerns, or challenges. All individual situations are unique and should be discussed with legal, financial, and health professionals, and tax accountants. Please be advised that the information on this website relates to laws specific to Ontario or Canadian federal law. Legal advice, procedure, and legislature may vary in different jurisdictions.
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