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Support Each Other Since 1996
Support Each Other Since 1996
What do capacity assessors charge?
Capacity Assessors set their own hourly rates. The rates tend to vary according to the occupational group to which the assessor belongs. Rates range between $150 and $250 per hour, although some assessors do charge higher fees because of their expertise in a specialized field.
The total cost of the assessment will depend on a number of additional factors including the:
For more information, please call 905 933 3406
The FACTS that you need to know.
Statutory Capacity Assessments
Letters of Opinion and Capacity Assessments
Many assessments require that the Allegedly Incapable Person (AIP) receive “The Education” in advance of the assessment. The reason is that all people are considered Capable until otherwise opined upon by a designated capacity assessor or a court of law. There should be no surprises and the AIP should know the criteria from which they will be examined, in advance of the assessment and have an opportunity to prepare. In advance of the assessment, every assessed person receives a full explanation of their right to refuse the assessment. All assessed persons have a right to refuse to be assessed unless it is a court ordered assessment.
Important concepts to know about this area of Ontario law.
The following information comes from: Guidelines For Conducting Assessment of Capacity (Capacity Assessment Office, Ministry of the Attorney General, May 2005) This information is up to date.
Right to Self-Determination
When encountering a situation where the person is mismanaging or endangering himself or others, the assessor must balance off the infringements to the individual’s dignity and right to make risky decisions against the benefits of protecting the vulnerable individual from potential harm. Unless there is clear and compelling evidence of impaired “ability to understand and appreciate”, the assessor cannot use a finding of incapacity as a means to manage risk. There can be occasions where the individual’s dignity and right to make risky decisions in the interest of the right to self-determination will take priority over the need to protect the individual from potential harm.
Presumption of Capacity
In every case, there is presumption for capacity and there should be reasonable grounds that prompt the request for a formal capacity assessment. Routine screening of whole classes of individuals cannot and should not be endorsed, as this prejudges an individual’s capacity based on class membership. For example, it is incorrect to assume that all intellectually disabled persons must be incapable by virtue of their disability. It is incorrect to assume that a diagnosis of severe psychiatric disorder like schizophrenia renders the person unable to meet his or her personal care or financial needs.
“Decisional” Capacity
The presence of mental illness or a significant cognitive deficit does not necessarily preclude rational decision-making in all aspects of a person’s life. In a similar vein, one cannot conclude incapacity solely on the basis of financial mismanagement or self-care deficits, as the person may be voluntarily incurring the known risks. The issue for the assessor is not whether the person’s actions or choices appear reasonable or will put them at increased risk, but whether the individual is able to understand critical information and appreciate the reasonably foreseeable consequences of his or her decisions or lack of them. The emphasis is on the quality of the decision-making process, not the actual course of action in which a person engages. This requires exploration of the particular line of reasoning employed by the person in making decisions, and whether or not those decisions are consistent with a personal belief system, known values and reality.
Key Interpretations: “Understand” and “Appreciate”
The SDA sets out a two-part definition of mental capacity in that the person must have the ability to understand information relevant for making decisions, and in addition, show the ability to appreciate the consequences of a decision or lack of a decision. The crux of the matter is to distinguish between decisions that are poorly informed, foolish, risky or socially deviant: as opposed to decisions that are the product of an impaired decision-making process.
Do you know a person struggling to manage their finances and
An assessment will protect their assets IF they are incapable.
A Power of Attorney (POA) for property allows a person you’ve chosen, to manage your property and finances. You will decide if they can manage it from the moment the POA is signed, or at a time in the future when you are no longer mentally capable of “understanding or appreciating” the consequences of your decisions.
Estate and Real Estate Lawyers, accountants and financial brokers often engage a capacity assessor to give an expert opinion on “incapacity to manage property” to ensure that the person “Understands and Appreciates” the consequences of their financial decisions. For example, if dementia may be in question, or a mental health issue such as depression or anxiety OR if a POA has a trigger that requires an assessment of incapacity before the document can become active, an assessor can provide an opinion of capable or incapable.
Capacity Assessment for Property
If a person has a Power of Attorney (POA) for Property and it has a ‘trigger’ such that,
We can provide an assessment and/or the letter of opinion that lawyers and banks require, to recognize the authority of appointed person.
If a person does not have a Power of Attorney for Property:
Is your loved one no longer capable of managing their own finances and property because they are,
A capacity assessment with a determination of ‘incapable’ will result in the office of the Public Guardian taking over the management of their property.
Once the file is opened by the Public Guardian, family members or friends can apply to manage the property on the person’s behalf. We will help you to understand the process and process the paperwork to ensure delivery to Office of the Public Guardian.
If a person does not have a Power of Attorney for Property:
Is your loved one no longer capable of managing their own finances and property because they are:
A capacity assessment with a determination of ‘incapable’ will result in the office of the Public Guardian taking over the management of their property.
Once the file is opened by the Public Guardian, family members or friends can apply to manage the property on the person’s behalf. We will help you to understand the process and process the paperwork to ensure delivery to Office of the Public Guardian.
How is mental incapacity defined?
In Ontario, a finding of incapacity relates to certain types of decisions. For example, a person who is found mentally incapable of managing their property or finances is not necessarily incapable of making decisions regarding their personal care.
A person is incapable of managing property if they are not able to understand information that is relevant to making a decision in the management of their property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
A person is incapable of personal care if they are not able to understand information that is relevant to making a decision concerning their own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
When is a Capacity Assessor Needed?
When the person does not have a power of attorney
When a person is incapable of making personal care OR financial/property decisions and does not have power of attorney, another person may be given the legal authority to make these decisions on their behalf. This authority is known as “guardianship.”
Before guardianship is assigned, it is up to the Capacity Assessor to determine if the individual is mentally capable of providing self-care. By law, a Designated Capacity Assessor is the only legal authority that can offer the expert opinion, according to the Substitute Decisions Act. The opinion is used by the lawyer who represents the person pursuing the guardianship application. The court will decide if the application to appoint the guardian meets the legal requirements.
When the person has a power of attorney
When a person has a power of attorney and it does not specify in the document that incapacity must be proven before the power of attorney can be used, the opinion of the capacity assessor is required to activate the existing power of attorney.
In what circumstances would someone other than a capacity assessor be required to perform an assessment?
There are certain types of assessments that capacity assessors do not do because the law provides a different way for them to be done. For example, the Health Care Consent Act states that if medical treatment is proposed for a person, it is up to the health professional who is proposing the treatment to decide if the person is capable of giving or refusing consent to the treatment. The same law requires that a determination of a person’s capacity to make a decision about admission to a long-term care facility may only be made by specific types of health professionals – called evaluators. Evaluators are usually available through the local Home and Community Care Support Services. Designated capacity assessors are not involved in these decisions.
How is capacity assessed?
Although it depends on the category of decision-making (e.g. finances, health care, shelter, etc.) that is being assessed and the level of cognitive functioning of the person being assessed, there are some general protocols that are followed in every assessment.
The assessor will try to determine whether the person’s understanding of the issues is factually accurate. For example, if the assessment is about capacity to manage finances, the assessor will determine whether the person can accurately identify their income, assets, debts and other financial involvements. The assessor will also assist the person by providing relevant information and testing the extent to which the person can retain, interpret and manipulate that information. The person’s responses are evaluated in order to determine whether they demonstrate an understanding of the information being discussed.
The choices the person is making (or neglecting to make) are also discussed in order to assess whether the person realizes the consequences of these choices and can explain the basis for them. Assessors do not infer incapacity simply because the person’s choices are extremely unusual or appear to be against their own interests or welfare. Similarly, the person’s capacity to appreciate the consequences of choices is evaluated in the context of the person’s particular lifestyle, values and beliefs. The only relevant issue is the person’s level of cognitive functioning and ability to reason and process information, not the merits of the choices the person makes. In other words, a capable person is entitled to make choices that may be “bad”.
How long does an investigation and court application usually take?
This depends entirely on the individual circumstances of the case and the availability of an assessor.
In most cases, however, the situation is more complicated and requires the investigator to contact many people, visit the person who is alleged to be incapable, track down various leads and review different types of records. Sometimes third parties who have essential information are hard to reach or take a long time to respond to the investigator’s requests. The person’s condition or situation may appear to stabilize for a period during which the investigation will not be active. As a result, an investigation may remain open for a number of months.
Can the OPGT make decisions for the person while the situation is being investigated?
No. The OPGT does not have any right to make decisions for the person until an opinion of incapacity is given and the appropriate report and certificate of incapacity is filed.
What powers does the OPGT have when it is guardian?
This depends on the type of guardianship – property or personal care – and the directions that have been given by the court.
If the OPGT is only appointed as the guardian of property, it will be authorized to secure and manage the person’s assets and other financial resources but will not be able to make any personal care decisions. If the OPGT is appointed as the guardian of personal care it will usually be authorized to make decisions about matters such as medical treatment and housing. Guardianship of personal care may also include the right to make custodial decisions that involve the person being taken to a place of safety with the assistance of the police.
What do capacity assessors charge?
Capacity Assessors set their own hourly rates. The rates tend to vary according to the occupational group to which the assessor belongs. Rates range between $150 and $250 per hour, although some assessors do charge higher fees because of their expertise in a specialized field.
The total cost of the assessment will depend on a number of additional factors including the:
Who pays the assessor?
In most cases, the person requesting the assessment is responsible for paying the assessor. For example, if a family member, a friend, or a caregiver requests the assessment, they would pay the assessor directly. If a guardian of property is then appointed for the person, the guardian can provide reimbursement for the costs of the assessment from the incapable person’s funds if there is sufficient money to do so.
There is a Financial Assistance Program available to cover the cost of an assessment in situations where an individual (not an institution or agency) is requesting it and cannot afford the fees. Applications for financial assistance can be obtained by contacting the Capacity Assessment Office.
This assistance is available if:
The Capacity Assessment Office will notify the requester when assistance has been approved or denied.
Does a person have the right to refuse a capacity assessment?
Yes. An assessment cannot be done if the person for whom it is proposed refuses, unless a court order has been obtained. A court order would be necessary to override the person’s refusal.
What happens if the person assessed disagrees with a finding of incapacity?
If the capacity assessment resulted in the appointment of a guardian of property but no order has been made by a court, the person assessed may ask the Consent and Capacity Board to review the finding. Information about the review process can be obtained from the Consent and Capacity Board at 1-866-777-7391 or by accessing the board’s website at: www.ccboard.on.ca.
If the assessment is being used in a court proceeding, the person may make his or her objections known during the court proceeding.
Legal advice should be obtained regarding an appeal of a court order.
Summary
If there is no power of attorney in place and the person is assessed to be incapable, the Office of the Public Guardian and Trustee will make decisions until such time when an applicant assumes the responsibility. If there is a power of attorney and the person is assessed to be incapable, the person(s) named to be the guardians will assume their responsibilities.
For more information, please call 905 933 3406