DRAFT
https://www.ontario.ca/page/mental-capacity
Challenging an incapacity decision
Some kinds of incapacity decisions may be appealed, such as:
- a decision by a capacity assessor, or a physician in a psychiatric facility, that a person is incapable of managing property and that the Public Guardian and Trustee should be appointed as their statutory guardian of property
- a decision by a health care practitioner that a person is incapable of making choices about their own medical treatment
- a decision by an evaluator that a person is incapable of making choices about admission to a long-term care facility
In other cases, such as a capacity assessment in a legal proceeding, you should contact a lawyer to advise you about what the assessment means and what your options are to oppose the assessor’s determination.
The Law Society Referral Service can help you find a lawyer. If you cannot afford a lawyer, Legal Aid Ontario may be able to provide you with financial assistance.
Learn more about appealing a capacity assessment from either:
- the Consent and Capacity Board (1-866-777-7391)
- the Office of the Public Guardian and Trustee’s resource Making Substitute Healthcare Decisions
Legal representation
Generally, an individual is responsible for arranging their own legal representation. In certain situations under the Substitute Decisions Act, 1992, the Office of the Public Guardian and Trustee may arrange legal representation. In certain situations under the Health Care Consent Act, 1996, Legal Aid Ontario may arrange legal representation.
If a person does not have legal representation, and the case is under the:
- Substitute Decisions Act, 1992, the Superior Court could direct the Public Guardian and Trustee (PGT) to arrange legal representation if the capacity of a person is an issue in the proceeding. The PGT does not represent the person or pay their legal fees.
- Health Care Consent Act, 1996, the Consent and Capacity Board could direct Legal Aid Ontario to arrange for legal representation.