The Superior Court of Justice’s recent decision in Urbisci v. Urbisci discusses the circumstances under which the court should require an individual to undergo a capacity assessment against his or her will. 

By way of background, the applicants were the daughter and estranged husband of the alleged incapable person (“Maria”).  They sought a court order requiring Maria, who had an incurable brain tumor, to submit to a capacity assessment.  Maria opposed the order.    

Section 2 of the Substitute Decisions Act, 1992 (the “SDA”) provides that absent reasonable grounds to believe to the contrary, an individual is presumed to be capable.  However, pursuant to s. 79(1), if an individual’s capacity is in issue in a proceeding under the SDA and the court is satisfied that there are reasonable grounds to believe a person is incapable, it can order a capacity assessment. 

The court has long rejected the idea that it was harmless to require an individual to undergo a capacity assessment.  The decisions of Strathy J. in Abrams v. Abrams and Pattillo J. in the unreported decision of Flynn v. Flynn, both discuss the intrusive and demeaning nature of the process.   

Brown J., the judge hearing the application, proceeded to set out some of the factors the courts have turned their minds to when determining whether there were reasonable grounds to believe that a person was incapable, including:

• The wishes of the person sought to be examined;
• The nature and quality of both medical and non-medical evidence regarding the person’s capacity;
• Where there has been a previous assessment, the assessor’s qualifications, the comprehensiveness of the report, the report’s reliability, whether there is evidence of bias, and whether the evidence considered was appropriate;
• The probative value of the assessment vis-à-vis the issue before the court;
• The potential harm that might result if the assessment does not take place; and
• The urgency of the capacity assessment.

Ultimately, Brown J. decided not to order the capacity assessment.  He found that although Maria’s health was declining, the evidence suggested that she still had the capacity to manage her own affairs. Particularly persuasive were medical records and opinions filed by Maria’s various doctors suggesting capacity; evidence of her capacity provided by her estate planning lawyer; and supportive evidence provided by disinterested family and friends.