5. Find out if the person is incapable
Question & Answer
What does an attorney for personal care do?A takes effect only when the person becomes of making personal care decisions.
Being mentally incapable means that the person cannot understand:
- the information needed to make a decision, or
- what could happen because of decisions they make about treatment or personal care.
A person might not be because they’re sick or weak, and not able to think clearly. They can also be mentally incapable if they have a disease like Alzheimer’s that affects their ability to think and remember.
But many people who are sick or who have Alzheimer’s can still make some decisions for themselves. And people can become mentally capable again, for example, by taking medication.
Deciding if the person is mentally incapable
If the Power of Attorney does not say who decides, you do. But you must have what the law calls “reasonable grounds” for deciding that the person is not mentally capable.
If the Power of Attorney names who will decide if the person is incapable, you usually cannot start making personal care decisions until this happens.
The person might include the actual name of who will decide if they’re incapable. This could be their family doctor, another health professional, a friend, or their attorney. Or, the Power of Attorney might say that it must be a certain type of professional, such as a doctor, social worker, psychologist, or nurse.
The Power of Attorney might also simply say that the person wants their mental capacity assessed and not name a specific person or profession. In this case, you must get a to decide if the person is mentally incapable.
A capacity assessor is someone who has special training and has been approved by the government to decide if people are mentally incapable. The Office of the Public Guardian and Trustee has a list of capacity assessors in Ontario.
Decisions about health care
Health practitioners must decide on their own whether a person is capable of giving informed consent about medical treatment. Informed consent is agreeing to medical treatment after receiving information about the treatment.
For other types of health-care decisions the person’s mental capacity must be assessed by an evaluator. These situations include:
- moving into a long-term care home, and
- getting personal care services in a long-term care home.
An evaluator must be a nurse, doctor, psychologist, occupational therapist, social worker, physiotherapist, speech language therapist, dietitian, or audiologist.
