How Is Mental Capacity Assessed for Managing Property in Ontario?

Capacity to manage property is assessed by a capacity assessor, and any person may ask for an assessment of another person. The purpose is to decide whether the Public Guardian and Trustee should become that person's statutory guardian of property. The request must be made on Form 4 under O. Reg. 26/95, and the requester must state they know of no attorney under a continuing power of attorney with authority over all the person's property.

If the assessor issues a certificate of incapacity, the Public Guardian and Trustee becomes the person's statutory guardian of property. The person found incapable must be told they can apply to the Consent and Capacity Board for a review of the finding. Capacity assessors set their own fees, and in most cases the person who asked for the assessment pays.

Patients of a psychiatric facility are different: a physician issues the certificate under the Mental Health Act instead, and no capacity assessor is involved. A family member can later apply to replace the Public Guardian and Trustee as guardian. The legal test for capacity itself turns on the facts, so confirm it with a lawyer or the assessor.