Capacity is a key component of estate litigation, especially in guardianship and attorneyship disputes. Questions of when someone has begun acting as an attorney for property and whether a person had the requisite capacity to designate a party as their attorney are some of the ways this issue plays out. Once these questions are raised, the arena in which these disputes are heard, for the most part, is the Superior Court of Justice.

And yet, there is an administrative board with ‘capacity’ built into the name – the Consent and Capacity Board (“CCB”). What is the CCB? What do they do? Where do they fit in the context of estate litigation? In today’s blog post, let’s take a look at these questions.

What is the Consent and Capacity Board?

The CCB is a quasi-judicial body established under the Health Care Consent Act, 1996 whose mission is “the fair and accessible adjudication of consent and capacity issues, balancing the rights of vulnerable individuals with public safety”.[1]

What does the Consent and Capacity Board do?

A variety of acts govern the operations of the CCB. These are:

• Health Care Consent Act, 1996
• Mental Health Act
• Substitute Decisions Act, 1992
• Personal Health Information Protection Act
• Mandatory Blood Testing Act, 2006
• Child, Youth, and Family Services Act, 2017
• Statutory Powers and Procedures Act
• Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009

Applications to the CCB are generally related to health care decisions and a person’s ability (or inability) to consent to treatment. By the CCB’s own reporting, most applications are for a review of involuntary status in a psychiatric facility, a review of a finding of incapacity to consent to treatment, or a review of Community Treatment Orders.[2]

If you would like to read some decisions rendered by the CCB, those from June 1, 2003, and onwards are all published and freely accessible online.

What does the Consent and Capacity Board have to do with estate litigation?

The CCB will sometimes be the appropriate forum to appeal a guardianship matter. Under section 20.02 of the Substitute Decisions Act, 1992 (“SDA”), a person who has had a statutory guardian of property appointed for them is entitled to apply to the Consent and Capacity Board for a review of the finding that they are incapable of managing property.

Another area where the CCB is relevant to estate litigation is where matters related to personal care are concerned. Under the SDA, health care decisions fall under the ambit of personal care. Where it is established that a person is incapable of managing their personal care, an attorney, guardian, or other substitute decision maker can bring an application seeking directions regarding a decision to be made or their authority to depart from prior capable wishes. Examples where this may be relevant include end of life care, decisions to forgo or undergo certain treatments, or place of treatment. Where health care is concerned, the CCB also may also conduct a review of a decision maker’s compliance with the rules for substitute decision making.

[1] https://www.ccboard.on.ca/scripts/english/aboutus/index.asp

[2] Consent and Capacity Board – Annual Report 2020/2021, at page 19.