The Government of Ontario has a website specifically dedicated to issues concerning and relating to mental capacity (the “Website”). The Website is a place where individuals can learn more regarding mental capacity, how it is evaluated, who evaluates it, and how to appeal a finding of incapacity. Of course, these are the types of issues which are often engaged in the world of estate litigation.

The Website links readers to various topics relating to mental capacity. These include, but are not limited to: assessing mental capacity; concern about someone’s well-being; capacity assessors; when someone is deemed incapable; legal representation; and resources. This blog will touch on a few of these topics, as explored on the Website.

By way of overview, the Website states, “Ontario law assumes that adults are capable of making decisions until it is proven they are not capable. A person is incapable of making a decision if they do not understand the information relevant to the decision or don’t understand the consequences of making or not making it, or both. People can be capable of making one kind of decision, but not another, and their ability to make decisions can change over time.”

With respect to the topic of addressing concerns about someone’s well-being, the Website notes that in non-emergency situations where mental capacity is putting someone at serious risk of harm, options include the following:

• Contact community agencies that may be able to help. Ontario211 can help you find programs and services in your community.
• Consider asking the court to appoint a guardian to make financial and personal care decisions.
• Have a formal capacity assessment conducted.
• Contact the Office of the Public Guardian and Trustee (OPGT). The OPGT may investigate if no alternative solution can be found. The OPGT has no authority to make decisions for the person during an investigation or while the matter is before the courts.

Th  Website goes on to explain that in order to request a capacity assessment, an assessor must be contacted directly. The Website then directs the reader to a list of capacity assessors and who a capacity assessor may be (i.e. a health professional who has completed the Capacity Assessor course under the Substitute Decisions Act.). The Website then notes that an assessment cannot be done if the person refuses the assessment, but such refusal is overridden by a court order. The Website also provides useful step by step instructions as to how a formal assessment may be requested. Helpfully, the Website additionally provides various assessment forms, to be completed by an assessor over the course of a capacity assessment.

The Resources section of the Website also directs readers to other relevant information, such as information relating to the duties and powers of a guardian of property; the role of the OPGT in providing property guardianship services; a guide to the Substitute Decisions Act; and links to pertinent legislation, such as the Health Care Consent Act and the Mental Health Act.

The Government of Ontario clearly recognizes the myriad of issues surrounding mental capacity. The Website contains a great deal of useful information, which is worth reviewing for a rudimentary understanding of these subjects, and suggested (first) steps when problems arise.