The Test for Capacity Assessment
The Court has discretion to order a capacity assessment pursuant to section 79 of the Substitute Decisions Act, if the person’s capacity is an issue in a proceeding under the SDA and it is satisfied that there are reasonable grounds to believe that the person is incapable.
Section 6 of the SDA defines the test for incapacity as follows:
- the person is not able to understand information that is relevant to making a decision in the management of his or her property; or
- is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
In determining whether to order a capacity assessment courts have considered the following to strike the appropriate balance between the autonomy of the individual and the duty of the state to protect the vulnerable:
1. the purpose of the SDA and the terms of section 79;
2. the nature and circumstances of the proceedings in which the issue is raised;
3. the nature and quality of the evidence before the court as to the person's capacity and vulnerability to exploitation;
4. if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
5. whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;
6. whether the assessment will be necessary in order to decide the issue before the court;
7. whether any harm will be done if an assessment does not take place;
8. whether there is any urgency to the assessment; and
9. the wishes of the person sought to be examined, taking into account his or her capacity.
Where a capacity assessment has already been obtained, the court will be reluctant to order a further assessment unless it has concerns about the adequacy or objectivity of the first assessment. In Ranieri v. Ranieri Estate the court considered the factors above and refused to order a second assessment.
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