As clients age, the likelihood that they’ll face physical and mental health problems rises. As a result, clients’ families may start to wonder whether capacity will become an issue. They may ask you for guidance.
However, it’s important that professionals tell clients’ families that assessing a person’s capacity carries significant consequences and should never be done simply because family members say it’s in someone’s best interest, says Lonny Rosen of Rosen Sunshine LLP.
Rather, a capacity assessment should only come into play when someone seems incapable of making important decisions, he says. This means a person doesn’t understand all of the relevant information required to make a meaningful decision as well as the impact of that decision. Rosen notes that a legal loss of capacity means the loss of significant human rights.
Alongside Office of the Public Guardian and Trustee representative Anthea Cheung, Rosen led a seminar on capacity conundrums as part of an Ontario Bar Association conference last week. Both experts stressed people are entitled to making foolish decisions if they understand the consequences, and that people with health problems can remain capable as long as they can make informed decisions.
If you’re worried about a client, seek help, say the experts. People often fight against having their capacity assessed, says Cheung. Also, courts aren’t quick to aid families by forcing assessments.
For more on incapacity issues, see our live tweets below. And, follow @advisorca for more news and event coverage.
Live tweets from Ontario Bar Association Institute
We’ll be reporting again from #OBAInstitute. This session is on how to handle capacity issues and about the OPGT’s role. The capacity conundrum session will feature Lonny J. Rosen of Rosen Sunshine LLP, and Anthea Cheung of OPGT.
And here we go: Rosen says capacity is based on several factors. Main job of doctors, caregivers is to determine if people can make decisions.
When people are tested for capacity, approach is to see if people can understand relevant information as well as the impact of decisions: Rosen
In terms of capacity and age, says Rosen, you’re considered capable as of age 18 #OBAInstitute This applies to lifestyle and financial decisions.
Professionals (lawyers, advisors) can assess capacity for decisions they oversee. But if wonder whether official assessment is required, there’s a process and designated capacity assessors. For example, if a client is making a complex decision that could be contested, and if you have doubts about his or her abilities, seek help.
But, professionals need to be careful when reaching out to Office of the Public Guardian and Trustee. Doing so can be “heavy-handed”: Cheung.
Rosen notes people have right to refuse capacity assessment. You can go through the court to overrule this, but that’s a tricky situation.
Designated capacity assessors must meet the requirements of the Substitute Decisions Act; this offers guidance to caregivers, doctors. For more on Substitute Decsions Act, click here. And, when assessing capacity, ensure the person understands why and the impact.
What’s difficult is even intelligent clients can be incapable of making personal financial decisions. She’s had such people file comprehensive appeals: Cheung.
She adds it’s key to only use recent medical evidence to support capacity assessments. Also, need more than family-doctor notes #OBAInstitute