Assessments of capacity: In this document, this term refers to all of the formal mechanisms for assessing capacity in Ontario, including examinations for capacity to manage property under the Mental Health Act, Capacity Assessments with respect to property and personal care that are carried out by designated Capacity Assessors under the Substitute Decisions Act, assessments with respect to capacity to consent to treatment under the Health Care Consent Act and evaluations of capacity to consent to admission to long-term care or to personal assistance services that are carried out by capacity evaluators under the Health Care Consent Act.
Assistance with decision-making: This term refers to the wide range of ways in which persons with impaired decision-making abilities may receive the help necessary to make decisions that are required, whether through informal arrangements, substitute decision-making or formalized supported decision-making.
Attorney: In this document, this term is used to refer to persons who are appointed under a power of attorney for property or personal care to make decisions on behalf of the person creating the power of attorney.
Capacity Assessor: In Ontario, Capacity Assessors are professionals who are designated as qualified to carry out Capacity Assessments for property and personal care under the Substitute Decisions Act. They are subject to training and oversight through the Capacity Assessment Office.
Capacity Assessments: In this document, “Capacity Assessment” refers specifically to assessments of capacity to manage property or personal care carried out by designated Capacity Assessors under the Substitute Decisions Act. These Assessments must be carried out in accordance with the Guidelines for Conducting Assessments of Capacity, which were developed by the Ministry of the Attorney General.
Capacity evaluators: Capacity evaluators are persons from specific professions who are able to carry out evaluations of capacity to consent to admission to long-term care or to personal assistance services under the Health Care Consent Act. Unlike Capacity Assessors, there are no standard requirements for training or oversight for capacity evaluators.
Evaluations of capacity: Under the Health Care Consent Act, capacity evaluators may carry out evaluations of an individual’s capacity to consent to admission to long-term care or the provision of personal assistance services. There are no standard guidelines for the conduct of evaluations of capacity, although institutions employing capacity evaluators may have their own training or standards.
Examinations of capacity: Under the Mental Health Act, when a person is admitted to a psychiatric facility, an examination of capacity to manage property must be carried out by a treating physician, unless the person’s property is already under the management of a guardian under the Substitute Decisions Act or the physician has reasonable grounds to believe that the person has a continuing power of attorney that provides for the management of property.
Grantor: a person who creates a power of attorney for property or personal care, thereby appointing another person to make decisions on his or her behalf.
Guardian: Guardians may be appointed under the Substitute Decisions Act, through either the Superior Court of Justice or a statutory process, to make decisions on behalf of another with respect to property or personal care.
Legal capacity: Legal capacity is a socio-legal concept that determines whether a person is entitled to make decisions for her or himself and be held responsible for the consequences. In Ontario, where an individual lacks legal capacity and a decision must be made, a substitute decision-maker will be appointed to do so in his or her place. “Legal capacity” should be distinguished from “mental capacity”: the former references the ability to hold and exercise certain legal rights, while the latter describes specific mental or cognitive abilities that have been identified as pre-requisites to the exercise of legal capacity.
Personal appointment: refers to both powers of attorney and support authorizations, as formal methods of identifying individuals who will assist with decision-making needs that are created by the individual who requires, or anticipates requiring assistance with decisions, without the need for involvement of the courts or government.
Power of attorney: a legal document whereby an individual can appoint another person to make decisions on her or his behalf, either for property or personal care. A power of attorney for personal care comes into effect only if the individual becomes legally incapable of making decisions independently. A power of attorney for property may come into effect immediately and be drafted to continue when the grantor is legally incapable, or may be drafted to come into effect when the person is legally incapable of making decisions independently.
Section 3 Counsel: Under section 3 of the Substitute Decisions Act, 1992 (and therefore, for the purposes of capacity to manage property or to make decisions about personal care), where the legal capacity of an individual is in issue in a proceeding under the Substitute Decisions Act, 1992 and that person does not have legal representation, the court may arrange for legal representation to be provided, and the person will be deemed to have capacity to retain and instruct counsel for that purpose.
Substitute decision-maker: a person appointed under current legislation to make decisions on behalf of another, including guardians, persons acting under a power of attorney and persons appointed to make decisions under the Health Care Consent Act.
Substitute decision-making: while there are variances across jurisdictions, in general substitute decision-making allows for the appointment, where there has been a finding of incapacity, of another individual to make necessary decisions on behalf of another. In Ontario, this includes individuals appointed through a power of attorney, through the hierarchical list under the Health Care Consent Act, as representatives by the Consent and Capacity Board, or as guardians under the Substitute Decisions Act.
Supported decision-making: Supported decision-making refers to a range of concepts and models of decision-making proposed as an alternative to the current dominant approach of substitute decision-making. There are a wide range of approaches to supported decision-making, but it general, it involves mechanisms that do not require a finding of legal incapacity, and that enable the appointment of persons to provide assistance with decision-making, rather than to make a decision on behalf of another person.
Third party service providers: in this document, this term refers to the wide range of professionals and organizations that may provide services to persons who lack or may lack legal capacity, and may therefore be required to determine legal capacity in order to obtain consent to a service or enter into a contract. Third party service providers may include government, financial institutions, retail service providers, professional service providers or others. “Professionals” who are conducting assessments of capacity or providing expert opinions are not considered as service providers when acting in these roles, but may be acting as service providers in other circumstances.
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