How is mental capacity assessed for a power of attorney for personal care in Ontario?

Capacity for making a power of attorney for personal care is assessed differently from the capacity assessed when decisions are actually being made under one.

To create a valid power of attorney for personal care in Ontario, you must have the capacity to make the document — meaning you must be able to understand what you are doing, understand the powers you are granting, and appreciate the consequences. This is typically presumed unless there is reason to question it. No formal assessment is usually required simply to create the document.

The more complex question arises when your attorney is called upon to act. At that point, a health care provider — such as a physician, nurse, or psychologist — may conduct a capacity assessment to determine whether you can make the specific decision at hand. This assessment considers whether you understand the relevant information and appreciate the consequences of deciding or not deciding.

If you or your family disagrees with a capacity finding, you have the right to apply to the Consent and Capacity Board for a review. The Board can hold a hearing, consider evidence, and make a determination. You also have the right to retain a lawyer for this process.

Capacity can also fluctuate — someone with dementia may have capacity to make some decisions on some days and not others. Assessors are trained to account for this variability rather than making a permanent, all-or-nothing finding.