Capacity Assessments - Hull on Estates #173
Listen to: Capacity Assessments - Hull on Estates #173
This week on Hull on Estates, Diane Vieira and Jonathan Morse discuss capacity assessments, the requirements for assessors under the Substitute Decisions Act, and who assesses capacity under what circumstances.
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Jonathan Morse: Hi and welcome to
Welcome to
Diane Vieira: Hi and welcome to another episode of
Jonathan Morse: And I’m Jonathan Morse.
Diane Vieira: And if you want to be heard on
Jonathan Morse: And that blog again would be estatelaw.hullandhull.com.
Diane Vieira: Hi Jonathan.
Jonathan Morse: Hi Diane.
Diane Vieira: How are you?
Jonathan Morse: I’m well, thank you. It’s finally a sunny day in the summer, which is not so common this summer unfortunately. And this is our first time blogging together I think.
Diane Vieira: Podcasting together.
Jonathan Morse: Podcasting. Pardon me. What am I doing? We’re podcasting. And I’m glad to be here so I’m happy to get into today’s topic.
Diane Vieira: Yeah, today we’re going to talk about something that comes across any lawyer who’s in the estates Bar, has to deal with and probably other lawyers too, is who assesses for capacity under what circumstances. And one of the reasons we’re talking about this is back in February, Saara Chetner from the Public Guardian and Trustee, along with Dr. Carol Cohen from Sunnybrook Health Sciences presented a paper called “Capacity Assessments – their use and limits”. And it’s a really great reference tool and we’re just going to touch briefly on some of the subjects they raised. But if you really need a reference to who assesses what under what circumstances, that is a great paper to go to.
Jonathan Morse: And absolutely. It’s certainly helpful for us in our day-to-day practice and helpful for us providing some background for our conversation today. And if I may just begin to introduce the concept of capacity, it’s defined as the ability to understand and the ability to appreciate information relevant to the decision at hand. And, of course, there are many situations that are encountered by practitioners in the legal field, in the health field. So this concept of capacity, I guess, moulds. There’s a base line of the definition of capacity, but it’s based on the circumstances, different criteria would apply.
Diane Vieira: Yeah. On a practical note, sometimes you’re presented with a situation and you’re not sure who you should get to provide your capacity assessment. I think today’s discussion, we’re going to try to clarify who is testing for capacity and in what circumstances. And we’re going to discuss a bit on capacity assessors as they are described under the Substitute Decisions Act and when you need a capacity assessor under that regime and when another expert witness or a family physician or another evaluator may be useful.
Jonathan Morse: Right. And when the Substitute Decisions Act is involved, often an assessment under that regime is called a mandated assessment. And that would happen under certain circumstances and Diane will just get into the regime of the mandated capacity assessment.
Diane Vieira: Just to back up, capacity assessors that are required under the regime of the Substitute Decisions Act, you can find out who is available to be a capacity assessor by looking at Ontario Regulation 460-05 of the SDA.
Jonathan Morse: So this Regulation is helpful in that it speaks to a few issues, for example, qualification data, Section 1 of the Regulation. Section 2, persons qualified to do assessments of capacity. And subsection 2 of this, the following are the conditions mentioned and they include different members of different professional organizations: College of Physicians and Surgeons of Ontario;
Diane Vieira: And it doesn’t include lawyers.
Jonathan Morse: Right.
Diane Vieira: That’s important. I think earlier drafts of this Regulation did include lawyers and then they were removed. Now the Regulation later mentions qualifying courses and different guidelines. If you want more information on that, the Capacity Assessment Office is a good resource. Also if you need a list of names of people that are qualified capacity assessors, they maintain that list and you can call them to get that information. They also provide some information with locating assessors in your neighbourhood and different language requirements.
Jonathan Morse: And I take it that, again, I’m looking at the Ontario Reg 460/05, Section 4 and 5 talks about qualifying course, courses that one would need to go through. Section 5 talks about continuing education courses. So skills have to be upgraded every 2 years. And I think it’s the case, Diane, that there’s an ongoing list held by the office that you’re speaking of, such that if you were looking at a list of 5 years ago or 6 years ago, a name that’s on the list then may be out of date. So you need to look at a current list because people may not have qualified currently.
Diane Vieira: Yes, you’re completely right. There are ongoing educational requirements that have to be fulfilled to maintain your place on the list and sometimes the list can be outdated quickly. So you should make sure you have someone on the list if you need it for the SDA purposes.
Jonathan Morse: Right.
Diane Vieira: And let’s just briefly talk about when you don’t need a capacity assessor who is under this roster.
Jonathan Morse: Right. And so that would, we used the language earlier – a mandated capacity assessor. So now we’re talking about non-mandated capacity assessments. And an example would be someone comes in to do a Will to a lawyer’s office and it’s part of that lawyer’s job to assess whether your client has capacity. And that’s not a capacity assessment under the SDA but rather part of the professional duty of a lawyer. And a lawyer can make that assessment himself but there may be instances when a lawyer may want to involve a third party to assist with that assessment. And that third party may be a medical person, basically someone who isn’t necessarily on the list that we just discussed because the purpose of this assessment is different and it’s simply going forward perhaps to provide…the lawyer doesn’t want to be a witness in their own matter, therefore they would involve a third party who could corroborate.
Diane Vieira: Yeah, because questions such as does this person have the capacity to instruct a lawyer? That’s not something that necessarily someone who’s on this capacity assessment roster would be able to do cause they’re trained and educated in capacity assessments as set out in the regime of the Substitute Decisions Act. This is more of a legal test. So you would be able to go to, as you just said, a different type of expert. And there are people, medical professionals, who are familiar with these tests and provide these assessments. And they are not necessarily on the capacity assessment roster. But that’s because this isn’t a regime in which they need to be. They’re testing for something different and they’re familiar with the different legal test.
Jonathan Morse: That’s right. And just, we’ll wrap this point up shortly. But when one is testing for the capacity to instruct counsel, for example, some of the issues which should be considered are (1) the nature of the proceeding, the proceeding that the person would be involved with, for which they need to instruct counsel; and also the person’s ability to understand the nature and effect and consequences of what he or she is and/or may be called upon to participate and decide on. So that’s fairly long-winded but that’s an example of the test. And other examples would include considerations of the person’s ability to understand the nature or context or overall issues in the litigation.
So just continuing with our capacity discussion today, we’re just going to give you a few examples at this point of instances where a mandated capacity assessment and a capacity assessor is required. Diane will provide some information at this point.
Diane Vieira: If you’re unsure whether you need a capacity assessor as set out in the Substitute Decision Act, a good reference tool is actually to look at the forms, because the forms which are available on-line from the Ministry of the Attorney-General, list the different sections that you may require a capacity assessor to be the person to do the assessment. You would need a capacity assessor if you are bringing statutory guardianship under Section 16 of the SDA; if you are bringing a Court-ordered guardianship; if you do a summary application, you require a capacity assessor and a person who knows the incapable person. But if you’re not bringing a summary judgment and you’re bringing a hearing before a judge, it can be a capacity assessor or another health professional. Personally I find that over time, Courts have become familiar with the forms that capacity assessors fill out. And judges tend to be more comfortable when they have Court-ordered guardianship, they have a capacity assessment there. So even though it’s not mandated that a capacity assessor do the assessment for a full hearing before a judge, I just find that instead of a letter from a family physician, a capacity assessment has a lot of weight.
Jonathan Morse: Absolutely it would. And I think our time is running out. Just, if I may, provide an anecdote, just of a recent experience where I was working on a matter, a guardianship application for a person who was injured and very seriously injured. But over the period of time that we were working on the guardianship matter, the person began to recover fortunately. So in this instance, a capacity assessment was conducted and it turned out, fortunately for this person, that he had capacity which, of course, made the need for the guardianship application…it became moot. But the reason why I raise this is that throughout any matter you’re working on, one’s capacity, a person’s capacity can vary and it should be kept top of mind that, depending on the circumstances, there may be a need to look at capacity, examine that issue and certainly if you’re involved with an SDA matter, a capacity assessor under the Regulation may be required.
Diane Vieira: Yes. We’ve just briefly touched on…it seems like such a simple thing when you need a capacity assessor but we just briefly touched on some examples. And I would refer you back to that paper presented by Saara Chetner from the Public Guardian and Dr. Carol Cohen for more information. We’ve actually never even touched upon Powers of Attorney for Property or Personal Care. And that’s a whole different issue. But that’s in the paper. And also look at the capacity assessment forms to see if…to indicate if you do need a capacity assessor under the Substitute Decisions Act.
Jonathan Morse: And, of course, in the paper, there is a discussion of case law which would clearly be helpful as well.
Diane Vieira: Yes.
Jonathan Morse: So I think we’re at the end of our talk today. And we’ve had fun. So I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today. I’m Jonathan Morse.
Diane Vieira: And I’m Diane Vieira. We look forward to hearing from you. If you have any comments or suggestions, you can e-mail us at hull.lawyers@gmail.com.
Jonathan Morse: And be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Jonathan Morse.
Diane Vieira: And have a good Civic holiday. Bye.
Jonathan Morse: Bye.
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