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Capacity tests are not always fair to those with disabilities

On Behalf of | Dec 21, 2020 | Guardianships & Capacity

Guardianship is an important tool family and friends can use to protect a loved one who is no longer able to care for himself or herself. Through guardianship, someone can obtain the legal authority to manage a loved one’s financial, legal or medical concerns without having to obtain permission from the court system. This often prevents the exploitation or endangerment of someone who is particularly vulnerable when he or she lacks the capacity to make decisions or understand the ramifications of those decisions.

However, it is not always clear when guardianship is the best option.

For many with disabilities, the fear of losing autonomy is real, especially since the process for assessing someone’s mental capacity does not always account for his or her physical limitations. For example, an individual with visual impairment may not be able to draw the face of a clock, which is one test to screen for dementia. A hospital stay following an illness or accident is one situation many with disabilities may fear because it often leads to capacity testing for someone with a disability.

Fighting for your autonomy

It is understandable that parents of children with developmental disabilities may want to protect them from risk, especially as they grow older. However, Canadian laws support the right of adults to make their own decisions and to have support in their decision making before they lose that right to guardianship. Unfortunately, many family members may not realize there are options available for their children with developmental disabilities who are nearing adulthood.

The process for determining someone’s capacity is not always reliable when it comes to those with developmental or physical disabilities. Sadly, many capable people end up in long-term care facilities long before they need to be. If you are facing a capacity assessment that may lead to guardianship, it is critical that you learn about your rights and options.


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