How is Decision-Making Capacity Assessed?

Sweatman Law Firm
July 30th, 2024

There is no set test to determine capacity which can be applied in all situations.

Capacity (or decision-making capacity) refers to the legal ability of an individual to make decisions about their lives and give consent. All individuals over the age of 18 in Ontario are legally presumed to be capable of making their own decisions. This presumption can be rebutted by the facts of each particular case.

Incapacity means that an individual does not have the legal capacity required to make certain decisions, such as management of property, personal care, or healthcare decisions. An individual may be incapable due to a variety of reasons such as their age, cognitive impairment, mental illness, developmental disability, or even temporary conditions like unconsciousness.

Capacity is time, situation, and task-specific. It can fluctuate based on the type of impending task and across a person’s lifetime.

Anyone with standing can request an evaluation. In most cases, consent is required from the person being evaluated before it can be carried out. There are exceptions to the requirement of explicit consent in certain circumstances such as emergencies or if the court orders for the assessment.

If an individual lacks decision-making capacity, this will trigger the need to activate a power of attorney, and if there isn’t one set in place, the need to apply for guardianship.