In estates and trusts litigation, capacity assessments are often a vital tool which can aid litigators and the court in navigating issues of capacity. Because of their importance, this blog will discuss what capacity assessments are, how they work, and their role in the litigation context.

What are capacity assessments?

Capacity assessments involve an assessment of a person’s capacity to do a specific task. This prompts the question, what is meant by capacity?

Capacity is a broad concept. It is important to note that there is no single definition of capacity, nor is there a general “test” or criteria to apply for establishing capacity, mental capacity, or competency. Instead, there are determining factors to consider in assessing capacity regarding the specific task or decision undertaken. For instance, someone may have the requisite decisional capacity to marry, yet not possess the requisite decisional capacity to grant a power of attorney.

Capacity is decision-specific, time-specific and situation-specific in every instance, in that legal capacity can fluctuate. There is a legal presumption of capacity unless and until the presumption is legally rebutted^[1]. Determining whether a person is, or was, capable of making a decision is a legal determination or a medical/legal determination depending on the decision being made and/or assessed.

In the estates’ litigation context, capacity assessments are utilised in two broad circumstances. First, to determine a person’s present capacity to do an act, like manage their property or personal care, through a contemporaneous assessment. In this instance, an assessor will meet the person being assessed, as well as consider supporting documentation. Second, to determine a person’s previous capacity to do an act, like execute a legal document. Here a retrospective capacity assessment is required, which involves an assessment of the required records and a forming of an opinion on a person’s prior capacity, who is either living or deceased.

Because of their utility in wading through issues of capacity, capacity assessments are a key tool used by litigations and the courts.

Different types of capacity

As determining capacity is task or decision specific, there are varying factors of capacity with different characteristics, including:

• Capacity to manage property;
• Capacity to manage personal care;
• Capacity to grant, or revoke a Power of Attorney document for property;
• Capacity to grant, or revoke a Power of Attorney document for personal care;
• Testamentary capacity;
• Capacity to marry;
• Capacity to make a gift; and
• Capacity to both instruct, and retain counsel.

For a capacity assessor in Ontario, assessing one of the above capacities generally requires a consultation of either: the Substitute Decisions Act (“SDA”), the Health Care Consent Act^[2] (“HCCA”) or the common law.

The SDA is the chief legislation for substitute-decision making in Ontario and provides the legal criteria for the capacity to, among other things, manage property, personal care and grant or revoke Powers of Attorney. The HCCA concerns the rules with respect to medical treatment and admission to care facilities and as such, the capacities that fall chiefly under the act include the capacity to consent or refuse medical treatment and to be admitted to a care facility.

The common law also provides certain capacity criteria, most notably for testamentary capacity as provided in Banks v. Goodfellow.

By way of example, I will highlight several capacities, the general factors to apply and their application.

(i) Capacity to manage personal care

The criteria to be applied for the capacity to manage personal care is found in section 45 of the SDA, which provides:

45 (1) A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her 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.^[3]

Thus, capacity to manage personal care has two fundamental components: (i) the ability to understand information relevant for making decisions; and (ii) the ability to fully appreciate the consequences of a decision. Assessments for the capacity to manage personal care usually arise in estates litigation when a person’s capacity is at issue and an application for guardianship of the person is made.

In Orens v. Young^[4], Mr. Young was found incapable of managing his personal care, having previously suffered a stroke caused by a brain clot. The result was a serious brain injury which left Mr. Young paralyzed on the left side of his body and meant he required 24-hour care. Mr. Young underwent a capacity assessment which was conclusive and left no doubt that he was incapable.

The next step was the appointment of a guardian of the person for Mr. Young. The dispute in Orens centered on who this should be, Mr. Young’s sister or his wife. The court examined evidence of the relationship as between the wife and other family members was “problematic” and the court was satisfied that the sister would be best to promote contact between Mr. Young and his extended family. As such, Mr. Young’s sister was appointed his guardian of the person.

(ii) Capacity to grant or revoke a power of attorney for personal care

The factors to be applied in determining the capacity to grant a Power of Attorney for Personal Care document are found in section 47 of the SDA.  A person is capable of granting a power of attorney for personal care if he or she:

• (a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and
• (b)  appreciates that the person may need to have the proposed attorney make decisions for the person.^[5]

A person is capable of revoking a power of attorney for personal care “if he or she is capable of giving one”^[6].

In Overtveld v. Overtveld^[7], the court found that Mr. Overtveld was incapable of granting a power of attorney for personal care document in December 2018. The court assessed several pieces of evidence including a contemptuous capacity assessment in 2018. Mr. Overtveld was found incapable because there was no indication, he had the ability to understand that his attorneys had genuine concern for his wellbeing and had no appreciation that the attorney would need to make decisions on his behalf. As such, the power of attorney document granted in December 2018 was declared invalid.

(iii) Testamentary capacity

The general applicable criteria for determining testamentary capacity in Ontario originates from the 18^th century English case of Banks v. Goodfellow^[8]. The criteria for determining the requisite testamentary capacity to grant or revoke a Will requires the testator to have the ability to in summary, understand the following:

1. The nature of the act of making a Will (or testamentary document) and its effects;
2. The extent of the property of which he or she is disposing of; and
3. The claims of persons who would normally expect to benefit under the Will ) or testamentary document)^[9]

There are some further elements of the criteria that are to be applied, that a testator must have for testamentary capacity including:

• A “disposing mind and memory” to comprehend the essential elements of making a Will;
• A sufficiently clear understanding and memory of the nature and extent of his or her property;
• A sufficiently clear understanding and memory to know the person(s) who are the natural objects of his or her Estate; and
• A sufficiently clear understanding and memory to know the testamentary provisions he or she is making.^[10]

On a retrospective assessment the assessor will review the medical data compiled from any number of sources together with considering the observations of the witnesses, as well as considering the solicitor’s notes from the relative time as at the date of instructions for and then execution of the Will.

The British Columbia case of Laszlo v. Lawton^[11], concerned a challenge to the Will of Ms. Czuczor, who disinherited her children and other family members. Ms. Czuczor suffered from ‘non-vitiating’ delusions, believing she could communicate telepathically with objects; that characters on television were communicating with her and that unidentified individuals had stolen significant amounts of money from her. However, these delusions were not directly connected to her decision to disinherit her family members, who were beneficiaries under a prior Will. Moreover, there was evidence that the Ms. Czuczor still possessed her cognitive abilities, to reason and remember, at the time she made her Will.

The court concluded that Ms. Czuczor did not possess the requisite testamentary capacity after considering the considerations in Banks v. Goodfellow, including the extent of her property, the considerations of those who would expect to inherit or the effect her new Will would have.

Assessors and the assessment process 

Capacity assessments are conducted by assessors, defined in the SDA as “members of a class of persons who are designated by the regulations as being qualified to do assessments of capacity”^[12]. The ‘regulations’ refer to O. Reg 460/05, which is concerned with the qualification of assessors. O. Reg 460/05 provides that an assessor must have completed a qualifying course for assessors, continue with educational courses and be covered by professional liability insurance, among other requirements^[13].

Moreover, section 2(2) of the regulations require that an assessor is required to be a member either the College of Physicians and Surgeons of Ontario, the College of Psychologists of Ontario, the Ontario College of Social Worker and Social Service Workers, the College of Occupational Therapists of Ontario or the College of Nurses of Ontario.^[14]

To streamline the assessment process, any assessments conducted in accordance with the SDA need to comply with the Guidelines for Conducting Assessments of Capacity (the “Guidelines”)^[15], which is governed by the Capacity Assessment Office as part of Ontario’s Ministry of the Attorney General.

The Guidelines provide a framework in which an assessor is to conduct their assessment and assist in several ways by outlining:

• Ethical and Legal considerations;
• The capacity assessment procedure (including guidance on interviews and evidence gathering);
• The key aspects of mental capacity under the SDA;
• The legal considerations of a capacity assessment; and
• How to perform capacity assessments with ‘special populations’ (the elderly, intellectually disabled, psychiatrically disabled and those with focal neurological disorders).

Miscellaneous issues

(i) Court-ordered capacity assessments

There are situations in which a court will compel a person to undergo a capacity assessment and the SDA provides this mechanism through section 79(1), which provides:

79 (1) If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or on its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person’s capacity.

When the court considers if a capacity assessment is required, they must weigh the individual’s fundamental rights of dignity and privacy and their legal rights against the court’s duty to protect the vulnerable^[16]. They must also consider several factors including the nature and circumstances of the proceeding, the nature and quality of the evidence before the court and whether any harm will be done if an assessment does not take place^[17].

(ii) Conflicting capacity assessments

There are circumstances when several capacity assessments are submitted to the court which directly contradict one another. This was the case in Adler v. Gregor^[18], wherein a dispute arose between two sisters over the validity of their 90-year-old mother’s power of attorney documents.

During the proceedings, each sister obtained capacity assessments supporting their positions and assertions of their mother’s capacity. Ultimately the court rejected both assessments because they were deemed unreliable and susceptible to bias and interference. His Honour reviewed the Guidelines for capacity assessments and found that capacity assessments were not designed to be used as weapons in highly contentious litigation such as this. The sisters conduct included” providing biased or incomplete histories and background to the assessors. [and] […] Both parties interfered with, and had a hand in drafting, the final assessment reports”^[19]. For these reasons the court deemed the conduct improper, and the capacity assessments were rejected.

Concluding Comments

Capacity assessments are one of the most important types of expert evidence in the Estates litigation. They can provide crucial insight into the capacity of a person and can hold much weight with a court. But because capacity is by its very nature fluid, it is not always straightforward which legal criteria are applicable or how the court will treat capacity assessments when deciding legal issues.

This a Newsletter introduction to what will be a series of blogs exploring capacity, capacity assessments and how the law deals with these issues.

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[1] Substitute Decisions Act, 1992, S.O. 1992, c. 30, at section 2 (“SDA”)

[2] Health Care Consent Act, 1992, S.O. 1992, c. 30

[3] SDA, section 45 (1)

[4] 2013 ONSC 5286 (CanLII)

[5] SDA, at section 47(1).

[6] SDA, at section 47(3).

[7] 2023 ONSC 460 (CanLII),

[8] Banks v Goodfellow (1870), LR 5 QB 549

[9] Ibid.

[10] See Murphy v Lamphier (1914) 31 OLR 287 at 318; Schwartz v Schwartz, 10 DLR (3d) 15, 1970 CarswellOnt 243, [1970 2 OR 61 (CA); Hall v Bennett Estate (2003) 64 OR (3d) 191 (CA);

[11] 2013 BCSC 305 (CanLII)

[12] SDA, at section 1.

[13] O. Reg 460/05, at section 2(1).

[14] O. Reg 460/05, at section 2(2).

[15] Accessible on the Ontario government website: https://www.publications.gov.on.ca/guidelines-for-conducting-assessments-of-capacityc

[16] Abrams v. Abrams, 2008 CanLII 67884 (ONSC) at para 50.

[17] Ibid.

[18] 2019 ONSC 3037 (CanLII)

[19] Ibid at para 52.