COVID-19 Update — To assist in our community’s collective effort to combat COVID-19, our physical offices are operating on a restricted basis. Although we are limiting attendance at our office by both firm members and clients, we remain otherwise fully operational and look forward to continuing to provide the highest level of legal services to our clients. Read our full response notice here.

“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.

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