What does incapable mean?

Incapable replaces the old terminology of incompetent. A person is incapable if he or she is unable to understand information relating to a decision or is unable to appreciate the consequences of making a decision or not making a decision.

How does a person know if he or she has been found to be incapable?

An assessor must complete a certificate after assessing if a person is incapable and the person is entitled to a copy of the certificate if the assessment is pursuant to the Substitute Decisions Act but not pursuant to the Healthcare Consent Act.

What if a person doesn’t agree with an assessor’s conclusion?

Findings of incapability may be appealed to the Consent and Capacity Board under the Health Care Consent Act but not under the Substitute Decisions Act.

Who conducts a capacity assessment?

Assessments must be carried out by a qualified assessor. The assessor must explain to the person being assessed the purpose of the assessment and the person’s right to refuse to participate in the assessment. An assessment cannot be carried out if the person who is the subject of the assessment does not consent.

What happens if an assessor finds a person to be incapable?

A decision of an assessor under the Substitute Decisions Act is only relevant for activating a Power of Attorney or for an application to the court for an order of guardianship. The Substitute Decisions Act only applies to property or personal care whereas medical treatment is governed by the Healthcare Consent Act which involves a different assessment process. The Substitute Decisions Act applies to healthcare, nutrition, shelter, clothing, hygiene or safety. A finding under the Healthcare Consent Act must be made by a doctor and results in decisions relating to medical treatment having to be made by a substitute decision maker.

If a person is found to be incapable and does not have a Power of Attorney in place, only the Public Guardian and Trustee can exercise authority over their property unless the court makes an order. Any person may apply to the court to be appointed as guardian of a person’s property. The decision as to whether a person is appropriate to act as guardian is up to the court.

Who can apply to the court to be guardian of another person’s property?

Any person may apply to the court to be appointed as guardian of a person’s property. The decision as to whether a person is appropriate to act as guardian is up to the court.

Can a person consent to medical treatment for another person without a Power of Attorney?

The Healthcare Consent Act governs decisions relating to any type of treatment by a physician, dentist, nurse, psychologist and other professionals listed in the legislation. Certain persons can consent on behalf of another person. The following is the order of precedence as to who can make decisions:

1. A guardian if one has been appointed by the court and has authority to give or refuse consent to treatment.
2. The person’s Attorney for Personal Care if the Power of Attorney gives authority to consent or refuse consent to treatment.
3. The person’s representative as appointed by the Consent and Capacity Board.
4. The person’s spouse or partner.
5. The person’s child or parent (other than a parent who only has a right of access).
6. The person’s parent who only has a right of access.
7. The person’s brother or sister.
8. Any other relative of the person.
9. The public Guardian and Trustee.

Note that if two people of the same rank disagree the Public Guardian and Trustee will make the decision.
Note also that “spouse” includes persons who are cohabiting for at least one year or have a child together. “Partner” includes two persons who have lived together for at least one year in a close personal relationship that is of primary importance to both persons, i.e. same sex partners qualify.

Medical treatment cannot be administered without consent of the person or a substitute decision-maker unless there is an emergency where the person is at risk of sustaining serious bodily harm if treatment is not administered promptly and it is not possible to obtain the consent in a timely manner and there is no reason to believe the person does not want treatment.

There is no set age that a person must be in order to be able to consent to treatment but a substitute decision-maker must be at least 16 years old.

Can a person be held against their will based on mental health issues?

The Mental Health Act states that a person can be detained:
- by police if they have reasonable and probable grounds to believe the person will harm or be harmed or is incapable and there is insufficient time to apply to a Justice of the Peace
- by order of a justice of the peace on reasonable and probable grounds
- by a doctor completing a Form 1 which results in the person being detained for 72 hours
- by an institution continuing a person’s detention after a Form 1 for 14 days, 30 days, 60 days or 90 days.

A person can also be detained based on a finding that he or she is incapable which is a more stringent test.

Other than the foregoing, force can only be used if authorized by a court order or if it is specifically authorized by Power of Attorney.

When does a Power of Attorney cease to have effect?

A Power of Attorney may be revoked at any time by the person who gave it provided it is done in writing and executed properly and the person is not incapable. If the court appoints a Guardian the Power of Attorney is terminated.

When does a Power of Attorney take effect?

The Power of Attorney for personal care will only come into effect when a person is found to be incapable. This is different from a Power of Attorney for property which takes effect immediately when it is executed unless it states that it only comes into effect if the individual is incapable. If the Power of Attorney does not state what conditions must exist for the individual to be considered to be incapable then the Power of Attorney takes effect either when the attorney is notified by an assessor that the individual is incapable or the attorney is notified that a Certificate of Incapacity has been issued under the Mental Health Act.

What is the difference between a Power of Attorney for property and a Power of Attorney for personal care?

The Power of Attorney for personal care operates the same as a Power of Attorney for property except that the former relates only to decisions pertaining to the person’s health care, nutrition, shelter, clothing, hygiene or safety.

How do you protect a person’s money or property if there are concerns about his ability to make decisions but he is not incapable?

If the person owns a home, the title to the home should be changed to add another person. Once this is done, the title to the property cannot be affected without the signature of all persons who are registered on title. Ownership of vehicles or other valuable assets can be dealt with in a similar manner. Care should be taken however to make it clear that the change is being made solely for the purpose of protecting the person’s property; otherwise there is a risk that the person whose name is added to the title could claim to be the actual legal owner of property. The person’s bank account should be protected by requiring a co-signer on cheques or limiting withdrawals to small amounts to prevent fraud.

What can I do if I believe that someone is taking money from the bank account of a person inappropriately?

If the person has given a Power of Attorney for property, the Attorney can take steps to freeze the account. If there is no Power of Attorney in place you have to apply to the court for an order.