s.16 Capacity Assessments for Property
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What is it?
Section 16 Capacity Assessments are a legal assessment to determine a person’s mental capacity to manage their finances under the Substitute Decision Act (SDA, 1992). These are a last resort, and other less restrictive options should be explored before requesting a capacity assessment. For example, if someone currently has Power of Attorney (POA), they are ineligible for a s.16 assessment.
A person is always assumed capable until there is sufficient evidence to indicate otherwise. These assessments are not meant for a person to have to prove they are capable. They are also not designed to reduce or prevent actions that you might think are risky or a bad idea.
However, should a decision of Incapable be reached, the Public Guardian and Trustee (PGT) will take over management of property. Once a file is open, friends or family can apply to take over managing the client’s property.
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What does it involve?
A Capacity Assessments involves:
-gathering information about the client’s case
-a personal interview(s) with the client
-reviewing relevant records
-preparing and writing the report
-submitting and delivering the report
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Who can request it and under what circumstances?
A Capacity Assessment can be requested by yourself, a friend/family member, lawyer, or healthcare professional.
A capacity assessment may be appropriate if it falls under any of the following:
-No continuing power of attorney (POA) is in place (unless there is a condition that it only comes into effect when a person is “incapable”).
-There is an issue that needs to be decided on or a specific decision that has to be made, and it is unclear if an individual is capable of doing this on their own.
-The person to be evaluated is willing to participate.
-Other less restrictive alternatives have been considered but are not suitable
*Please note that Brianna cannot provide capacity assessments to current or former psychotherapy and case management clients
FAQs
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In most cases, the person requesting the assessment pays the assessor.
If you are an individual (not an institution or agency) and are facing financial constraints, there is a Financial Assistance Program available to cover the cost of an assessment. Applications for financial assistance can be obtained by contacting the CAO directly; they will then notify the requester when assistance has been approved or denied.
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Yes. As an assessor, I provide Rights Advice at the beginning of meeting with the client that outlines the assessment process and its potential consequences. The assessment cannot be completed if the individual refuses or does not assent to the interview. A court order would be necessary to override the person’s refusal.
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If the capacity assessment resulted in the appointment of a guardian of property but no order has been made by a court, the person assessed 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 individual may make their objections known during the court proceeding. Legal advice should be obtained regarding an appeal of a court order.
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Capacity Assessors set their own rates. The rates tend to vary according to the occupational group to which the assessor belongs. Rates include collection of data, interviewing, review of materials received, travel, time required to complete the assessment and the related forms, and other administrative costs. Rates start at $1,000 (+HST).
