Capacity Assessment for Managing Property in Ontario: Who Does It and Who Pays

When a parent or relative starts missing bills, giving money away or falling for scams, families often wonder whether the person can still manage their own finances. The question is sensitive, and the legal answer is not about age or a diagnosis alone. It turns on a specific test.

This article explains the Ontario test for being incapable of managing property, who carries out a capacity assessment, what happens if the person says no, who pays, and what your options are with or without a power of attorney. It also covers when the Public Guardian and Trustee may step in.

The legal test for being incapable of managing property

Under section 6 of the Substitute Decisions Act, a person is incapable of managing property if they cannot understand information relevant to making decisions about their property, or cannot appreciate the reasonably foreseeable consequences of a decision or of not making a decision.

Two things follow from that wording. First, the test looks at understanding and appreciation, not at whether the person makes choices you would not make. Second, a worrying event, such as one bad purchase, does not by itself answer the question. What matters is whether the person can understand the information relevant to their property decisions and appreciate the reasonably foreseeable consequences.

Who does a capacity assessment, and can the person refuse?

Capacity assessors are trained health professionals. They include doctors, nurses, psychologists, social workers and occupational therapists.

An assessment cannot be done if the person refuses, unless a court orders it. That matters for families. You cannot simply arrange an assessment and bring the person to it against their wishes. If someone is refusing and the risk is real, a lawyer can explain whether a court application is a reasonable next step.

Who pays? Usually the person who asked for the assessment pays the assessor. If you are the one requesting it, ask about the cost before you book.

How an assessor's notice can bring a power of attorney into effect

A power of attorney is called continuing if it says the authority can be used while the person is incapable of managing property. Some are written to take effect on a set date or when a specified event happens.

If a power of attorney takes effect when the person becomes incapable but gives no way to decide whether that has happened, it takes effect when the attorney is notified in the prescribed form by an assessor that the person is incapable, or that a certificate of incapacity has been issued. In that situation, the assessor's notice is what lets the attorney start acting.

Whether a particular document works this way depends on its own wording. If it names a different method for deciding incapacity, that method matters. Have the document reviewed before anyone relies on it.

What happens when there is no power of attorney

Who can act for the person when there is no power of attorney depends on the situation, so it is worth confirming with a lawyer. The court may appoint a guardian of property for an incapable person, and anyone can make the application.

A guardianship appointment ends a continuing power of attorney. So if a power of attorney exists but is being disputed or misused, a guardianship application changes the picture and should be considered carefully.

• No power of attorney: a guardianship application to the court may be the route.
• A power of attorney that is being misused: the court can order an attorney to pass their accounts.
• An attorney's duties include acting diligently, honestly and in good faith, keeping accounts, and facing liability for damages for breach of duty once the grantor is incapable.

When to contact the Public Guardian and Trustee

The Public Guardian and Trustee must investigate any allegation that a person is incapable of managing property and that serious adverse effects are occurring or may occur. Serious adverse effects include the loss of a significant part of the person's property. The investigations line is 1-800-891-0504.

There are limits. The office may investigate only if no alternative solution can be found, and it has no authority to make decisions for the person during an investigation or while the matter is before the courts. It is a safety net for serious situations, not a replacement for a family plan.

What to do next

• Write down specific examples: unpaid bills, unusual withdrawals, confusion about accounts, with dates.
• Find out whether a power of attorney for property exists, and read how it says it takes effect.
• Talk with the person gently first, since an assessment cannot go ahead if they refuse unless a court orders it.
• Ask any assessor about timing and cost before you request the assessment, because the requester usually pays.
• If significant property is at risk and no other solution works, consider calling the Public Guardian and Trustee.
• Speak with a lawyer if you are unsure whether to seek an assessment, a guardianship order or an accounting.

Frequently asked questions