Ordering a Second Capacity Assessment

October 8, 2008 Hull & Hull LLP Capacity, Estate & Trust, Power of Attorney Tags: , , , , , , , , , , , 0 Comments

Pursuant to section 79 of the Substitute Decisions Act, the court has discretion to order a capacity assessment of an individual if the person’s capacity is an issue in a proceeding under the SDA. The court must also be satisfied that there are reasonable grounds to believe that the person is incapable. 

Where a capacity assessment has already been obtained, the court will be reluctant to order a further capacity assessment of an individual, unless the court has, for example, concerns about the lack of detail or objectivity within the assessment that has already been obtained. 


In Forgione v. Forgione, the court was concerned about the adequacy of the assessment carried out by a medical doctor. The court did not know what background information the doctor had or what, if any, influence anyone other than one family member may have had on the process. The report was very brief and consisted largely of conclusions without analysis. There were a number of facts and conflicting versions of facts which, in the court’s view, warranted further examination because they raised questions about the capacity and vulnerability of the incapable. A second assessment was ordered.

In Mesesnel (Attorney of) v. Kumer, Greer, J ordered a second assessment. It was the attorney’s position that the doctor had taken a strong personal dislike to him and that such dislike had influenced the doctor and affected the doctor’s objectivity. The doctor had originally been ordered by the court to prepare one comprehensive report; instead he prepared three separate reports which he made available over a three-month period. Moreover, none of the standard tests, except the Folstein test, was employed by the doctor, regarding the capability of the person to manage his affairs. The doctor’s criticisms of the attorney throughout the report were enough, in the court’s view, to raise the suspicion of bias in his reports.

While Greer, J. was aware that an assessment could cause the incapable some anguish, she was of the view that it was essential to have a second assessment in order that there be full and fair medical and neurological data before the court when the issues were determined.



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