The Capacity Assessment Office: Questions and Answers

What does the “Capacity Assessment Office” do?

The Capacity Assessment Office trains eligible health professionals to be capacity assessors in accordance with the Substitute Decisions Act. It also:

• maintains an up-to-date list of qualified capacity assessors
• provides on-going education and consultation services to capacity assessors
• offers a financial assistance plan to people who want to request an assessment but cannot afford to do so
• answers questions about capacity assessments
• can help in locating capacity assessors who speak other languages

The Capacity Assessment Office is operated by the Ministry of the Attorney General.

What is a capacity assessor?

A capacity assessor is someone who is trained and qualified to determine if an individual is mentally incapable of making certain types of decisions, as per the Substitute Decisions Act. 

Who is eligible to become a capacity assessor?

The following health care professionals are eligible to become capacity assessors:

• doctors
• Registered Nurses or Registered Nurses (Extended Class)
• psychologists
• registered social workers
• occupational therapists

How can you become a designated capacity assessor?

Applicants must:

• successfully complete a Ministry of the Attorney General training program
• maintain a minimum of $1,000,000 of professional liability insurance
• be a member in good standing with their professional college.

To maintain their designations, capacity assessors must complete a minimum of five assessments within two years and successfully complete and participate in continuing education activities.

If you are a member of one of the health professions (listed above list) and are interested in becoming a designated capacity assessor, please email CAO@ontario.ca.

When would a capacity assessor's services be required?

If a person does not have a power of attorney and cannot make personal or financial decisions, another person may have to be given special legal authority to make decisions on their behalf. This authority is called guardianship.

Before this authority is given, it must be determined that the person is mentally incapable. In certain circumstances which are detailed in the Substitute Decisions Act, a designated capacity assessor is the only professional authorized by law to make this decision.¹

A capacity assessor’s opinion may also be needed if a person has appointed a power of attorney but stated that their own mental incapacity must be proven before that power of attorney comes into effect. If the person doesn’t say how their mental incapacity should be proven, a capacity assessor’s opinion is needed.

An assessment of mental capacity for anything other than what is in the Substitute Decisions Act does not need to be performed by a designated capacity assessor. For example, many health care decisions fall under the Health Care Consent Act and can be made by a spouse, relative or other appointed person.

¹ One exception relates to in-patients of psychiatric facilities who must, according to the Mental Health Act, be examined by their attending physicians regarding their abilities to manage their finances. The attending physician does not have to be a designated capacity assessor.

When would someone other than a capacity assessor be required to perform an assessment?

There are certain types of assessments that capacity assessors are not legally allowed to do. For example, the Health Care Consent Act states that if medical treatment is proposed for a person, the health care professional proposing the treatment must decide if the patient is capable of consenting to the treatment. The Act also states that only specific health care professionals called evaluators can determine if a person has the capacity to decide whether or not they should be admitted to a long-term care facility.

Before requesting any assessment - whether from a capacity assessor or other professional – it is important to be clear about the purpose of the capacity assessment, and whether it is actually necessary. To check whether the assessment required should be done by a designated capacity assessor, you can contact the Capacity Assessment Office.

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.

How is capacity 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 correct. For example, if a person is being assessed to determine their ability to manage their own finances, the assessor will find out whether they can accurately identify their income, assets, debts and other financial involvements. The assessor will help the person being assessed by giving them relevant information and testing how much the person can retain, interpret and use that information. The person’s responses are then analyzed to see whether they demonstrate an understanding of the information.

The assessor also looks at the choices the person being assessed is making (or not making) in order to determine whether the person understands the consequences of these choices and can explain why they made them. Assessors do not assume a person is mentally incapable simply because their choices are unusual or appear to be against their own interests or welfare. Similarly, the person’s ability to appreciate the consequences of their choices is looked at in the context of the person’s particular lifestyle, values and beliefs. The only important thing to look at is the person’s level of mental functioning and their ability to reason and process information. In other words, a capable person is entitled to make choices that may be “bad”.

Are capacity assessors employees of the government?

No. Capacity assessors are independent and are not employed by the government. Most capacity assessors have a private professional practice or are employed by a health care service.

Do capacity assessors have particular areas of expertise?

Yes, some capacity assessors do have particular areas of expertise. Although all capacity assessors have training and expertise in conducting assessments, some have specific skills and experience working with people who have certain types of disabilities, such as dementia, mental illness or brain injuries.

What do capacity assessors charge?

Capacity Assessors set their own hourly rates which can vary. Rates range between $100 and $250 per hour, as some assessors 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:

• nature and complexity of the person’s condition
• assessor’s experience in conducting assessments
• time required to complete the assessment and the related forms
• expenses, including travel, that may be required

Who pays the assessor?

In most cases, the person requesting the assessment pays the assessor. For example, if a family member, friend, or caregiver requests the assessment, they would pay the assessor directly. If a guardian of property is then appointed for the person, the guardian can reimburse them from the assessed person’s funds if there are funds for this.

There is a Financial Assistance Program available to cover the cost of an assessment in situations where an individual (not an institution or agency) cannot afford the fees. Applications for financial assistance can be obtained by contacting the Capacity Assessment Office.

This assistance is available if:

• the particular assessment required cannot, by law, be completed by anyone other than a designated capacity assessor
• the Capacity Assessment Office agrees that a capacity assessment is required in these circumstances
• the person or their family member requests the assessment and the person will not refuse the assessment
• the person requesting the assessment meets the financial criteria for financial assistance by providing financial information about their own finances by submitting a completed financial assistance application.

The Capacity Assessment Office will notify the requester when assistance has been approved or denied.

Will the Capacity Assessment Office arrange assessments?

No, it is important that you select the capacity assessor that you feel is best suited to your request and you have an opportunity to discuss details with them directly.

What should I consider when selecting an assessor?

It is important to determine whether an assessment by a capacity assessor is required. You should consider:

• the geographic area in which the assessor works
• the assessor's availability
• the assessor's particular area of expertise;
• the fees proposed by the assessor
• the language(s) spoken by the assessor if the person being assessed does not speak fluent English.

Francophone individuals have a right to assessment in French. Contact the Capacity Assessment Office for assistance in locating assessors with multiple language skills. Translation or interpretation costs may also be covered in certain circumstances by the Financial Assistance Program, and a partial subsidy may be provided in cases where it is necessary for an assessor (who can meet specific clinical/language needs) to travel more than two hours.

Who oversees the conduct of assessors?

All assessors are members of professional groups and are licensed by their regulatory colleges which set standards of professional conduct and competency. These colleges have the authority to handle any complaints about an assessor’s conduct or quality of work and may take disciplinary measures if warranted.

The Capacity Assessment Office is responsible for providing training, continuing education and guidance to assessors. It maintains the roster of designated capacity assessors and responds to questions from the public. Assessors can also obtain assistance and expert clinical advice through the Capacity Assessment Office when dealing with difficult cases.

Does a person have the right to refuse a capacity assessment?

Yes. An assessment cannot be done if the person refuses the assessment, unless a court order has been obtained. A court order would be necessary to override the person’s refusal.

What happens if a person is assessed as being mentally incapable and disagrees?

If a guardian of property has been appointed but no order has been made by a court, the assessed person 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 their objections known during the court proceeding.

Legal advice should be obtained regarding an appeal of a court order.

How do I obtain the list of capacity assessors or more information?

You can find capacity assessors in your region by using the links below:

• Central
• East
• North
• West

View a map of the four regions.

You can also email CAO@ontario.ca, call 416-327-6766 or toll free 1-866-521-1033, fax 416-327-6724 or write to:

The following brochures and links on the Public Guardian and Trustee website will help you understand the legislation and the options provided to protect vulnerable adults.
www.attorneygeneral.jus.gov.on.ca/english/family/pgt/

• Guide to the Substitute Decisions Act
• Powers of Attorney – Questions and Answers
• Power of Attorney Kit
• Becoming a Guardian of Property
• Duties and Powers of a Guardian of Property
• Register of Guardians
• Role of the OPGT in Making Substitute Health Care Decisions

Guidelines for conducting capacity assessments are posted at:
www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity.php

Alternate formats of this brochure are available upon request. Please contact 416-314-2803 or toll free 1-800-366-0335.