How Is Capacity Assessed for Adult Guardianship in Saskatchewan?

When a parent or relative seems to be struggling with decisions, it is natural to wonder whether they still have capacity and whether someone needs to step in. Capacity is not a label that applies to everything at once. It is about a particular decision at a particular time.

This article explains how Saskatchewan approaches capacity in the adult guardianship setting, who can carry out an assessment, what the results are used for, and which gentler options usually come first. It does not cover making a will or the tests that apply to wills.

This article covers the law of Saskatchewan.

What capacity means in the guardianship setting

In the guardianship context, capacity is assessed by asking whether the person can understand information relevant to a decision and appreciate the reasonably foreseeable consequences of making that decision or of not making it.

In plain words, there are two parts. Can the person take in and grasp the facts that matter, such as what a treatment involves or what a financial choice would do? And can they see how the choice would likely affect them, including the result of doing nothing? A person may manage everyday choices well and still struggle with a complex financial decision, which is why the question is decision-specific.

Who carries out the assessment

A court application for guardianship or co-decision-making needs at least two assessments by qualified professionals. The professionals named include a doctor, nurse, occupational therapist, physical therapist, social worker, speech therapist or psychologist.

• Doctor
• Nurse
• Occupational or physical therapist
• Social worker
• Speech therapist
• Psychologist

Having more than one assessment helps give the court a fuller picture than a single opinion would. A lawyer can tell you which professionals suit your relative's situation and what the assessors will need to see.

How the results shape what is asked for

The assessment results help decide what decision-making authority to request, whether personal, financial or both, and how broad that authority should be. A narrow concern, such as managing money, does not automatically call for authority over every part of someone's life.

Less intrusive options come first

Less intrusive options are suggested before guardianship. These include informal support, trusteeship, and a power of attorney if the adult can still grant one. Court involvement is generally treated as a step to consider once those options are not suitable.

Whether a person can grant a power of attorney is both a medical and a legal decision. An assessor's view is important, but it is not the only piece. For an enduring power of attorney, the grantor and the attorney must be 18 or older and mentally competent. The document must be in writing, dated and signed, and witnessed either by a lawyer (with legal advice and a witness certificate) or by two competent adults who are not the attorney or family of the grantor or attorney, with two witness certificates.

Some people cannot act as an attorney, including an undischarged bankrupt (for property), someone convicted in the last 10 years of a Criminal Code offence involving violence, theft, fraud or breach of trust (unless pardoned or disclosed to and consented to by a capable grantor), and someone paid to provide the grantor's personal or health care.

When a dependent adult is a beneficiary of an estate

Capacity questions can also arise after a death. If any beneficiary of an estate is under 18 or a dependent adult, a Notice to Public Guardian and Trustee (Form 16-12, two copies) is required. Executors are also expected to notify the Public Guardian and Trustee if minors or dependent adults may have an interest.

What to do next

• Write down the specific decisions your relative is having trouble with.
• Ask whether informal support or trusteeship could meet the need.
• Find out whether your relative can still grant a power of attorney, keeping in mind that this is both a medical and a legal question.
• Talk to their doctor or another qualified professional about an assessment.
• Speak with a lawyer before applying to court so the request matches the assessment results.

Frequently asked questions