What can you do if you Suspect that a Loved One is no longer Capable?

September 30, 2021 Rebecca Kennedy Capacity Tags: , , , , , , , , , , 0 Comments

Something that no one ever wants to deal with, but which is sometimes an unfortunate reality, is the incapacity of a loved one. You may notice that your spouse or parent is not themselves, or has acted in a way that causes you some concern.

If the person has a power of attorney for property and a power of attorney for personal care, the attorney(s) named in those powers of attorney may need to step in and begin to manage the person’s finances and care. The terms of the power of attorney may set out when the attorney can begin acting. For instance, some powers of attorney for property are effective immediately upon execution by the grantor, and continue to be in effect in the event of any subsequent incapacity.

The power of attorney may also outline what kind of confirmation of the grantor’s incapacity is necessary before the attorney may begin acting on the grantor’s behalf. If the grantor is willing to cooperate in whatever capacity assessment is required, this step may be simple and straightforward to complete. However, as is often the case, the person may resist acknowledging any decline in their capacity or cognition, and may not wish to have their capacity assessed.

Pursuant to s. 78(1) of the Substitute Decisions Act, 1992 (the “SDA”), a person must consent to having their capacity assessed. If they refuse to be assessed, the assessor is precluded from performing an assessment.

If a person refuses to be assessed, it is possible to seek a court order for an assessment, pursuant to s. 79(1) of the SDA. In order to do so, the following will be required:

a) the person’s capacity must be in issue in a proceeding under the SDA; and

b) the court must be satisfied that there are reasonable grounds to believe that the person is incapable.

As a capacity assessment can be an intrusive process, the court takes requests to order them very seriously, and will often not be quick to order one. As discussed in Abrams v Abrams, [2008] O.J. No. 5207, some of the factors that the court will consider in making a determination in this regard include the following:

i) the purpose of the SDA, being to protect the vulnerable;

ii) the nature and circumstances of the proceedings in which the issue is raised;

iii) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;

iv) whether the assessment will be necessary in order to decide the issue before the court;

v) whether any harm will be done if an assessment does not take place; and

vi) the wishes of the person sought to be examined, taking into account his or her capacity.

Thanks for reading,

Rebecca Rauws

 

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