Can You Force Someone to Get a Capacity Assessment?

Family and friends will often notice changes in a person’s mental health or mental capacity, even if the person lacks insight into these changes. Family members and friends often becomes concerned their loved one lacks capacity:

• to make decisions about finances or personal care
• to make (or to have made) a POA or a Will
• to commence of defend a legal proceeding

In these situations, where the person’s capacity is being questioned, it can be helpful if the person agrees to undergo a capacity assessment. But what if the person won’t agree? Family and friends will often ask the lawyer if the person can be forced to undergo the capacity assessment.

The short answer is no, not usually.

Under Ontario law, a formal capacity assessment starts out by the Assessor providing “rights advice”, after which the person can chose whether to consent to the assessment. If the person does not consent, the Assessor cannot continue.

One clear exception is when a person has been involuntarily admitted to a psychiatric facility. In order to be admitted to a psychiatric facility against your wishes, a physician must assess you and determine that you lack capacity to consent to psychiatric treatment. In most other situations, though, a person cannot be assessed against their wishes.

In rare cases, it may be possible to convince a court to order someone to undergo a capacity assessment. That said, courts are very hesitant to order people to undergo assessments. Courts must balance the person’s fundamental rights to privacy and security and to refuse medical intervention (which a capacity assessment is), against the court’s duty to protect the vulnerable.

The court will consider what evidence is currently available regarding capacity or incapacity, the nature and importance of the matter in which capacity became an issue, whether an assessment is necessary to determine a matter already being litigated before the court, whether there is any urgency, whether harm may result if the assessment is not ordered, and several other factors.

See: Power of Attorney Capacity Assessment: Capacity Assessors and Cost