Capacity Assessment Office

1. Capacity Assessment Office Presented by Hilary Callin Acting Program Coordinator 416-327-6424

2. Capacity Assessment Office (CAO) • The Substitute Decisions Act mandates who can be Capacity Assessors and the occasions when these legal assessments of capacity are required to bring in to force provisions of SDA. • The CAO: • provides initialassessortraining regarding legislation and the guidelines for assessing capacity • provides ongoing support and education to assessors • maintains a public list of qualified assessors • administers a financial assistance program to pay for assessments under certain circumstances • monitors assessors’ quality assurance requirements

3. Who are capacity assessors under SDA? • A member of one of the following Colleges: • Physicians and Surgeons of Ontario • Psychologists of Ontario • Social Workers and Social Service Workers Ontario • Occupational Therapists of Ontario • Nurses of Ontario (RN or RN-EC) • Have successfully completed a CAO/Ministry of the Attorney General training program • Comply with ongoing Quality Assurance regulations • Carry $1,000,000 of professional liability insurance

4. When is “capacity assessment” required? • To facilitate a legal process under SDA: • to create Statutory Guardianship for property (s. 16) • to terminate Statutory Guardianship for property(s. 20) • in some cases to make a Power of Attorney effective (postponed effectiveness s. 9(3) , s.49(2). • to give or revoke a Power of Attorney for Personal Care with special provisions (s. 50) • may be used when applying for or terminating court-ordered guardianship for property or for personal care

5. Less intrusive options for property if capable • Capable but needs help - may arrange for: • Bank Power of Attorney / for bank account only • Direct deposit of cheques, direct payment of bills • Assistance to write cheques; deposit/withdraw funds-shop for groceries, etc. • Continuing Power of Attorney for Property

6. Continuing Power of Attorney • SDA s.8, capable to give CPOA if: • Knows what kind of property and its value • Is aware of obligations owed to dependents • Knows attorney will be able to do anything with person’s property except make a will • Knows attorney must account for dealings • Knows he/she may revoke CPOA if capable • Appreciates property may decline unless prudently managed • Appreciates attorney could misuse authority

7. Less intrusive options for property if incapable • Trusteeship for government pensions only: ODSP/OW, WSIB, OAS/GAINS/CPP • Someone is willing to apply and act as trustee • Evidence of misspending (risk of eviction, unpaid utilities, no food) • Indications of incapacity - disorganized thoughts, forgetful, paranoid, having difficulty with basic money skills, being exploited by others • No other property to be managed

8. Options for property (continued) Guardianship for property is a last resort when other less intrusive options are not sufficient: • No POA in place, no one to name, or the person is not capable of appointing a POA • Trusteeship is not enough authority to manage property/finances or there is no one to act as trustee • When there are assets to be managed and someone with legal authority is required to manage the property of an incapable person (such as private pensions, inheritances, stocks, bonds, investments, real estate, collections - stamps, paintings, jewellery, antiques) • Capacity assessment may be requested

9. Capacity Capacity is a cognitive test: • Ability to understand information (factual knowledge + problem solving ability/making choices) • Ability to appreciate consequences (realistic appraisal of outcome + justification of choice) • Question is not “do they understand” but “can they understand”, can they understand and remember information “Does the level of decisional ability match the demands for decisions on the person?”

10. Premise underlying SDA/Capacity • Main “threats” to decisional capacity: • Intellectual Disabilities Psychiatric Disabilities • Dementias Other Neurological Disorders • It is suggested that: • those with intellectual deficits and dementias would most likely fail on the “know” or cognitive tests • those with psychiatric and other neurological disorders would most likely fail on the “appreciate” tests • These “threats” to decision-making capacity suggest the areas for focus when structuring interview questions

11. Understand - 1st base • Factual knowledge: preservation of old skills and knowledge • How much knowledge does the person have about their finances and/or has s/he been given the basic information • Has the person been educated to any new facts such as a change in finances • Ensure it is a test is of capacity not ignorance

12. Understand - 2nd base • Able to comprehend information about options and risks to make an informed choice • Able to attend to relevant information, understand at a conceptual level and retain information long enough to reach a decision • Able to remember prior choices and express them in a predictable and consistent manner over time • Able to problem solve around personal/financial issues – assessor will probe specific examples

13. Appreciate - 3rd base • Able to appraise potential outcomes of a decision or lack of decision • Focus is on the reasoning process; explore the personal weights, values attached to each outcome • Does s/he acknowledge personal limitations in meeting demands (show insight) • Decision-making is reality-based; is it being affected by delusions (fixed false beliefs) or by emotional states (depression, hopelessness causing an undervaluing of survival issues)

14. Appreciate - 4th base Justification of choice: • shows evidence of rational (based in reality) manipulation of information - a “reasoned choice”, not necessarily a reasonable choice • grounded in personal beliefs and values; consistent with previous actions, expressed wishes, cultural or religious beliefs

15. What do assessors do? • Screen calls (can the person’s needs be met in some other way, less intrusive / expensive) • Collect background information – what needs to be decided, what has been tried? • Has the person been educated to the facts? • Meet the person, * provide rights advice * • Assess capacity if person does not refuse • Confirm information with collateral sources • Write report and file as required

16. Roster of SDA Capacity Assessors • Assessors are listed by geographic areas, second language facility, professional qualification, areas of expertise When choosing an assessor, consider: • Matching the client’s needs and preferences & the professional expertise of the assessor • Proximity of assessors to the client’s address • Obtain an estimate of costs (hourly rate and total estimate) from more than one assessor • Ask when they are available to do the assessment

17. Cost of Assessment • The requestor pays for the assessment • Fees are determined by the assessor, each profession has suggested guidelines for fees • Range in cost from $300 to $1500+ depending upon complexity of assessment • Requestor may recover cost of assessment from estate of incapable person or from the PGT if PGT is appointed to manage property (if funds available) • Financial assistance is available to individuals who cannot afford to pay for an assessment - means tested

18. Financial Assistance • Available through Capacity Assessment Office for individuals (not agencies) who request assessment • Based on financial situation of requestor, not of allegedly incapable person (unless self-requested) • Only for assessments required under SDA • For financial assistance applications or rosters of assessors contact the Capacity Assessment Office at: 416-327-6766 or 1-866-521-1033

19. Websites • Public Guardian and Trustee information, brochures (‘Capacity Assessment Office’, ‘When the Office of the PGT Becomes your Guardian of Property’) • www.attorneygeneral.jus.gov.on.ca/english/family/pgt/ • Ministry of the Attorney General site, all Ontariostatutes and regulations (Forms) in downloadable form • www.e-laws.gov.on.ca/ • Ministry of Health and Long Term Care • www.health.gov.on.ca • Ontario’s Consent and Capacity Board • www.ccboard.on.ca • A Practical Guide to Capacity and Consent Law of Ontario www.champlaindementianetwork.org/uploads/Resources/consentlawe.pdf