How Mental Capacity Is Assessed in Saskatchewan

When a parent's memory starts to slip, families often ask the same thing: can they still manage their money, make their own health choices, or sign legal papers? The answer is rarely all-or-nothing, and a diagnosis alone does not settle it.

This article explains in plain terms who assesses capacity in Saskatchewan, what the assessment looks at, and how the result is used. It is general information, not advice on your family's situation.

This article covers the law of Saskatchewan.

Capacity is about a decision, not a label

Capacity is not one switch that is either on or off. A person may be able to decide who should visit them but struggle with a complicated investment. That is why assessments focus on a particular decision at a particular time.

In Saskatchewan's guardianship context, capacity is assessed on whether the person can understand information relevant to a decision and appreciate the reasonably foreseeable consequences of making or not making that decision. Understanding is about grasping the facts. Appreciating is about seeing how those facts apply to the person's own life.

Who carries out an assessment

For a court application for guardianship or co-decision-making, at least two assessments are needed from qualified professionals. The professionals the province lists include:

• A doctor or nurse
• An occupational or physical therapist
• A social worker
• A speech therapist
• A psychologist

Your parent's own doctor is often a sensible first contact because they know the person's history. Which professional is best placed to assess a given decision depends on the situation.

How the results are used

The results help decide what decision-making authority to ask for (personal, financial or both) and how broad that authority should be. The province suggests looking at less intrusive options first, such as informal support, trusteeship, or a power of attorney if the adult can still grant one.

An enduring power of attorney is one that continues in effect even if the grantor becomes incapacitated. It can take effect immediately or only later (a contingent or 'springing' power), cover personal matters, property or both, and be general or limited.

Signing a power of attorney or a will

Capacity to grant a power of attorney is both a medical and a legal decision. An assessor's opinion is evidence, but it does not by itself decide the legal question. The same is true for the capacity needed to sign a will, which is a legal test decided by a court or lawyer.

For an enduring power of attorney, the grantor and the attorney must both 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.

If a will is later challenged, a will that was duly executed is presumed to have been made with capacity. Suspicious circumstances can shift the burden to the person relying on the will, while undue influence and fraud remain the burden of those attacking it. Timing matters, so a record made close to signing can be valuable.

What to do next

• Write down specific examples of what worries you, with dates, such as missed bills or confusion about medications.
• Encourage your parent to see their doctor and, if they are willing, to talk about their wishes while they can.
• Ask whether a power of attorney is already in place and where the signed original is kept.
• If your parent can still understand and appreciate the decision, talk to a lawyer promptly about granting an enduring power of attorney.
• If capacity is clearly in doubt, ask a lawyer about guardianship or co-decision-making and what assessments would be needed.

Because the right path depends on the person's actual abilities and the decisions at stake, it is worth confirming your options with a lawyer before acting.

Frequently asked questions