Family members must often make tough decisions when a loved one shows signs of incapacity, says Toronto wills and estates lawyer Matthew Urback.

In these situations, it’s helpful to have a capacity assessor talk to them, he says.

“They are trained and have the experience to evaluate if someone is incapable of making their own decisions or looking after themselves,” Urback tells AdvocateDaily.com.

“They are health-care professionals or social workers and they will usually conduct multiple interviews with the person.”

Urback, an associate with Shibley Righton LLP, says he hears from family members who are unsure about how fit a relative is to make daily decisions.

“The person in question may be able to complete some tasks, but not others.”

He says Ontario's Substitutes Decision Act can provide information regarding next steps.

“That legislation offers a roadmap for relatives seeking to have someone act on the individual’s behalf when it comes to property or personal care,” Urback says.

“It provides a process for the court to appoint a guardian of property, for example, when an individual is deemed incapable of managing.”

The guardian is then able to deal with banks and other financial institutions, says Urback.

“Banks are increasingly worried about fraud, so they cannot allow someone to act for an individual without legal authority,"" he says. ""After a family member is appointed, they will then have a document they can present to banks or credit card companies.”

In order to obtain this document, an application is made to the courts, Urback explains.

“According to the Substitutes Decision Act, you must demonstrate to the court that the individual is not capable of managing their affairs,” he says.

The Act defines under what terms a person would be incapable of dealing with financial matters or their own personal care, says Urback.

Section 6 outlines when an individual is unfit to address property matters.

“A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision,” it reads.

Section 45 sets out the test for incapacity to care for oneself, Urback says.

It states: “A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

Urback says if quick action is needed to get legal guardianship, a capacity assessor’s report can accelerate the process.

“The court uses that material to help make the decision and it can speed up a ruling because there is third-party evidence.”

Lawyers should delay acting if they have any concerns about the person’s capacities, he says.

“They can even refuse to act until they get a better idea of the situation or to request an assessment,” Urback says.

If the client refuses an assessment, he says an application can be made to the court to appoint a guardian.

“The client is given the opportunity to respond if they are capable.”

To avoid court proceedings, he says it’s helpful to have a power of attorney in place while an individual is still of sound mind and can express his or her wishes.

“It’s always better to have control in these situations rather than leaving it in the hands of the court,” Urback says.