Capacity assessments are an important tool to discern whether a person can make major decisions regarding their property or personal care and play an important role in many estate litigation cases.
However, because a person may refuse a capacity assessment, a court has the power to order one if there’s sufficient evidence to suggest that the person is incapable but will typically only do so if it is necessary for the case.
The Power to Order an Assessment
According to Section 79 of the Substitute Decisions Act, a court can order an assessment if capacity is in question and if the court has reasonable grounds to believe that the person is incapable. Section 105 of the Courts of Justice Act states that the courts can order an assessment where the physical or mental condition of a person is in question.
The Abrams Factors
Along with assessing the capability of the person, the courts will also consider several other factors, as outlined in the 2008 case, Abrams v. Abrams. These ten factors include considerations like whether the assessment is necessary to solve the given dispute, whether any harm will be done if the assessment doesn’t take place, whether the assessment is urgent, and other circumstances relevant to the case.
The court will also prioritize the protection of the vulnerable person’s privacy, dignity, legal rights, and personal wishes. In Abrams v. Abrams, the justice stated that a capacity assessment is a “substantial intervention into the privacy and security of the individual,” and since it is the court’s duty to protect vulnerable persons, judges must take that into this account when deciding if an assessment is necessary.
Past Capacity Assessments
Courts will also consider and evaluate any previous capacity assessments the person has undergone. The judge will review the quality of these assessments and the qualifications of the assessor, evaluating them for errors, bias, or irrelevance. In the 2021 case, Zagorac v. Zagorac, the respondent had undergone two past capacity assessments. However, the courts determined that these assessments were conducted improperly, as the assessor didn’t review the correct documentation, didn’t interview the subject comprehensively, and relied on notes written by a biased family member.
Have any more questions about capacity assessments? Contact our Estate Litigation Team for expert insight and guidance.
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* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
