Stepping into the role of someone’s attorney for property or personal care may not be as easy or immediate as one might think. Capacity assessments play an important role in one’s ability to act as attorney for an incapable person.

While some power of attorney documents will take effect immediately upon the grantor signing the documents, a large portion of power of attorney documents will take effect only upon the incapacity of the grantor. For a power of attorney to take effect in these circumstances, the document will usually specify what type of finding of incapacity is required. This is often either a note from a doctor stating that they believe the person to be incapable, or a finding of incapacity from a capacity assessor.

It is important to note that where a power of attorney document is silent as to when the document takes effect, a capacity assessment will be automatically required before the appointed attorney is permitted to act. This may be a level of effort the grantor does not want to place on their attorney, so it is important to have this discussion with the grantor and ensure that the documents reflect exactly what they want.

For power of attorney documents that specify the grantor must be declared incapable via one of the above noted methods before the appointed attorney may act, it is important to inform the attorney of this. You don’t want the attorney to find themselves stuck in a situation where they need to act but can’t because the power of attorney has yet to become effective. It may take a while to schedule a capacity assessment with a capacity assessor.

However, there are times where an assessment is required from someone other than a capacity assessor. For example, under the Health Care Consent Act (“HCCA”), where medical treatment is proposed for a patient, the health professional proposing the treatment must be the one to decide whether the patient is capable of consenting to or refusing the treatment. The HCCA also states that a specific type of health professional called an evaluator must be the one to determine whether a person has capacity to consent or refuse admission to a long-term care facility.

The person being assessed has the right to refuse to consent to a capacity assessment. In these situations, it may be necessary to obtain a court order to require this person to undergo an assessment. If the person being assessed disagrees with the finding of incapacity following a capacity assessment, they can make an application to the Consent and Capacity Board to review the finding.

Lastly, we must remember that a finding of incapacity is not a medical designation but a legal one. The only way a person can be officially deemed incapable is through a finding by the court.

Thanks for reading!

Darien Murray