Evidence of Incapacity in Ontario Guardianship Applications: What You Need to Know

In Ontario, guardianship is governed by the Substitute Decisions Act, 1992 (“SDA”). A court may appoint a guardian under the SDA if it finds that a person is incapable of managing their property and/or personal care and that someone must be authorized to make decisions on their behalf.

A key question in any guardianship application is what evidence is required to support a finding of incapacity under the SDA. This blog explains the legal test for incapacity and the types of evidence the courts typically expect to see.

The Legal Test for Incapacity

Section6 of the SDA sets out the legal definition of incapacity to manage property, and Section 45 of the SDA sets out the legal definition of incapacity to manage personal care. Under these definitions, a person will be found incapable if they are not able to understand information that is relevant to making a decision concerning their property or personal care, as applicable, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Adults in Ontario are presumed capable unless there are reasonable grounds to believe otherwise. This presumption means that the burden of proof lies with the applicant seeking guardianship. The evidence must demonstrate that the individual’s cognitive impairment prevents them from understanding relevant information or appreciating the consequences of their decisions. Importantly, the legal test focuses on decision-making ability, not whether the person is making “good” or “wise” decisions. Even risky or unconventional choices do not necessarily demonstrate incapacity if the individual understands the information and appreciates the consequences.

Evidence of Incapacity in Guardianship Applications

1. Capacity Assessments

The most common and persuasive evidence of incapacity is a formal capacity assessment conducted by a designated capacity assessor. Capacity assessors are health professionals – such as doctors, nurses, or social workers – who are trained in assessing a person’s capacity for purposes of sections 6 and 45 of the SDA. While the SDA does not strictly require these types of capacity assessments, courts tend to prefer that they be done because they specifically address the statutory criteria.

For example, in the case of Valente v Valente, 2014 ONSC 2438, the court found that the alleged incapable person was incapable of managing their property and personal care based on doctors’ opinions and video evidence of the alleged incapable person. Though there was sufficient evidence to make a finding of incapacity without a formal capacity assessment, the judge ordered a formal assessment under s.79(1) of the SDA because “it is desirable to have a formal assessment in place”.

2. Medical Evidence

A finding of incapacity under the SDA is a legal determination rather than a purely medical one. However, medical records and physician opinions can help explain the cognitive impairments of the alleged incapable person and give more context to their condition. Where there are formal diagnoses – such as dementia, Alzheimer’s, traumatic brain injury, etc. – records confirming these diagnoses should be produced. These records will also likely be reviewed by the designated capacity assessor in support of their assessment.   

3. Anecdotal Evidence

Courts also look for specific factual examples of the alleged incapable person’s inability to manage their property and/or personal care. Affidavit evidence from people who are close to the alleged incapable person that describes their functional difficulties can be very helpful, particularly where there is a lack of current medical evidence and no capacity assessment. For example, in the case of Naccarato v Naccarato, 2023 ONSC 3944, the Court found that the alleged incapable person was incapable of managing her property and personal care based on anecdotal evidence alone.

Conclusion

Declaring a person incapable of managing their property and/or personal care is a serious order that greatly impacts their rights. As such, the court expects strong and persuasive evidence in support of this requested relief. The strongest guardianship applications combine professional capacity assessments, medical evidence, and detailed anecdotal evidence of the alleged incapable person’s lack of capacity.

If you have a loved one who may be incapable of managing their property and/or personal care and you believe a guardianship appointment may be appropriate and necessary, do not hesitate to contact our estates lawyers at Mills & Mills LLP for advice and assistance with your guardianship application. 

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