Estate Planning

The Test for Capacity Assessment

By Hull and Hull LLP

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. 

Sharon Davis - Click here for more information on Sharon Davis.

Full post as published by Toronto Estate Law Blog on May 20, 2010 (boomark / email).