We have previously blogged on what you can do if you suspect that a loved one is no longer capable of making decisions in relation to their property and/or their personal care. But what happens when your loved one opposes the idea of a capacity assessment in order to help you determine the appropriate course of action? The dilemma between protecting a loved one’s vulnerability is weighed against their right to autonomy and privacy.
In Dimitrova v. Dimitrova, 2021 ONSC 3239 the Applicant was an adult daughter who brought an application to be appointed as guardian of her mother’s property and personal care. The Applicant claimed that her mother, Ms. Dimitrova, had started to exhibit strange or “psychotic” behavior several years ago, providing evidence of her mother’s allegedly harassing and aggressive behaviors, irritational beliefs and unattended health and financial problems.
In analyzing whether Ms. Dimitrova was incapable of making decisions in respect of her property and personal care, Emery J. noted that the purpose of the Substitute Decisions Act , 1992 (“SDA”) is to protect the vulnerable, while at the same time ensuring that “the dignity, privacy, and autonomy of the individual are assiduously protected.”
Quoting Turnbull J. in Park v. Park, 2010 ONSC 2627, Emery J made note of the role of the court on a guardianship application:
[48] The court is therefore placed in a position where it must weigh the fundamental rights of each citizen against the danger that that vulnerable person may be taken advantage of due to his/her incapacity to protect or care for her/himself or his/her assets and property. In doing that, the court must be cognizant that the capacity to perform certain functions differs, depending on the nature of the function.
In assessing the evidence put forth by the Applicant, Emery J. notably acknowledged that the Applicant was not a capacity assessor and was therefore not qualified to make a finding of incapacity, or any medical or psychiatric diagnosis. However, the Applicant’s evidence demonstrated to the court that there had been a decline in her mother’s mental health over time and warranted a conclusion that Ms. Dimitrova was not currently capable of making proper decisions about her property and personal care.
The Applicant’s evidence included three sworn affidavits which satisfied the court that Ms. Dimitrova, on a balance of probabilities, was incapable of making decisions about her property and personal care. The court made note of the following factors in rendering its decision:
- Ms. Dimitrova was incapable of engaging with third parties to manage her property as supported by a letter from Royal Bank asking her to bank elsewhere because of her behavior;
- Ms. Dimitrova was driving without automobile insurance;
- Ms. Dimitrova had credit card payments she could not pay, which suggested to the court that she could not meet her debts and liabilities; and
- Ms. Dimitrova did not take her medication when required, was in need of immediate dental care, attention to her blood pressure, and treatment for psychiatric issues she was experiencing.
As noted above, the Applicant was not a qualified capacity assessor and therefore the evidence she submitted to the court was not equivalent to a finding of incapacity. Therefore, Emery J. went on to consider whether or not it would be appropriate in the circumstances to Order a capacity assessment pursuant to Section 79(1) of the SDA, noting the following:
[43] The courts have recognized that an assessment ordered under s. 79(1) is an “intrusive and demeaning process.” An assessment has been characterized as essentially a psychiatric examination where there is a substantial intervention into the privacy and security of the individual.
The court recognized that Ms. Dimitrova did not consent to an assessment under s. 79(1) and therefore found that compelling an assessment would not strike an appropriate balance between Ms. Dimitrova’s autonomy and the duty of the state to protect the vulnerable. The court was satisfied on the evidence put forth by the Applicant that Ms. Dimitrova was incapable of making decisions about her property and personal care and therefore the court was not inclined to order Ms. Dimitrova to submit to a capacity assessment, as doing so would would offend Ms. Dimitrova’s “dignity, privacy and autonomy and operate in a manner inconsistent with the purposes of the SDA”.
Recognizing when a loved one may be vulnerable and in need of protection is a difficult and overwhelming process. There is an undeniable balance to be struck between restricting your loved one’s autonomy and protecting them from vulnerability.
Thank you for reading,
Nicole Cianci
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