“Incapable of making decisions for oneself”.  This is a statement lawyers routinely use during the Power of Attorney drafting process.  In a decision released yesterday by the Ontario Court of Appeal, Anten v Bhalerao, we are reminded of the test for capacity which was set out in the 2003 case of the Supreme Court of Canada, Starson v Swayze. In Anten v Bhalerao, the Consent and Capacity Board found that the Appellant, Amy Anten, lacked mental capacity.  An appeal from this decision was dismissed by the Superior Court of Justice, and thus a further appeal was made to the Ontario Court of Appeal.  The Court of Appeal found that the finding of incapacity was unreasonable and could not stand. The statutory test for capacity consists of two parts: 1. Is the person able to understand the information relevant to making a treatment decision; and 2. Is the person able to appreciate the reasonably foreseeable consequences of his or her decision. This test involves a look into the patient’s actual appreciation of factors which should inform treatment decisions.  These factors include an appreciation of the nature and purpose of the proposed treatment, the foreseeable benefits and risks of the treatment, the alternative courses of action available, and the expected consequences of not having the treatment.  The test does not ask whether other people consider the patient’s decision to be reasonable.

Contact Us

2 St Clair Ave West
Suite 700
Toronto, ON M4V 1L5

Phone: (416) 863-0125

Fax: (416) 863-3997

Questions? Send us an email.

    Sending an e-mail to us will not make us your lawyers. You will not be considered a client of Mills & Mills LLP until we have agreed to act for you in accordance with our usual policies for accepting clients. No information we provide to you can be treated by you as legal advice, unless and until we have agreed to act for you. Confidential or time-sensitive information should not be sent through this form.