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Assessing mental capacity before proceeding with a guardianship

If it appears that a family member may be having problems making decisions regarding important issues, there are a number of potential steps to take. One possibility for those in Ontario facing this situation could be a guardianship, but before moving forward, the person must be assessed regarding his or her mental capability. Is the individual able to think logically about finances or make decisions regarding health care, shelter and so on?

The need for a capacity assessor

A capacity assessor will need to evaluate the individual to decide whether he or she is mentally capable of making decisions. A capacity assessor can be a nurse, doctor, psychologist, psychiatrist, occupational therapist or social worker. They are used in circumstances when:

  • Someone is a patient in a facility undergoing psychiatric treatment, in which case a doctor must decide.

  • Someone has to have a medical treatment. In this case a health care practitioner has to decide.

  • Someone is part of a court proceeding, in which case a judge makes the decision based on expert and medical advice.

  • Someone may need admittance to a long-term care home or facility, in which case an evaluator sent by the Local Health Integration Network (LHIN) decides.

An assessor may be appointed to assess decision-making capacity for finances and property, personal care and health care. For those who feel someone is not in the position to make sound decisions and it’s not an emergency situation, there are options:

  • Think about asking the court to appoint a guardian for the person having difficulties making financial and personal care decisions.

  • Contact agencies in the community that may be able to assist. In Ontario, call 2-1-1 to access particular programs.

  • Have a capacity assessor do a formal assessment.

  • Get in touch with the Office of the Public Guardian and Trustee (OPGT) to investigate, although the organization doesn’t have the authority to make decisions.

There are other complex issues often entangled with guardianships such as powers of attorney. This can result in these type of situations becoming overwhelming. An experienced lawyer can carefully guide someone though this challenging time, providing much-needed peace of mind and eliminating potential missteps.

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