March 21, 2022

The Substitute Decisions Act (SDA) regulates all types of attorneys, statutory guardians, and court appointed guardians of property or personal care. Among other things, it sets out the rules for creating a valid power of attorney document, sets out the procedure for applying to appointed guardian of property/personal care for another, and enumerates some of the duties and obligations of attorneys and guardians.

Power of attorney documents generally specify when they come into effect. Most often, the power of attorney document will state that it is effective immediately upon being signed or as soon as the grantor is incapable of making financial or personal care decisions. In the event that the power of attorney document “springs” into effect when the grantor becomes incapable, the power of attorney document will usually specify the type of evidence needed of incapacity: either a doctor’s note or a formal capacity assessment. Where the power of attorney document is silent, a capacity assessment is required.

If a person did not sign a power of attorney document while capable of doing so and is no longer able to make personal or financial decisions, another person may have to be given legal authority to make decisions on their behalf.  This authority is called guardianship.

The determination of whether a person is incapable is ultimately a legal one not a medical/clinical one.  While a report from a certified capacity assessor is not necessarily required, the convention among lawyers and the court is to rely on a capacity assessment as the best evidence of incapacity where capacity is in dispute.

You can read the full paper here:

2022.02.22 – HLA Paper – A Practical Guide to Capacity Assessments in Litigation (J W de Vries)

You can also access our list of practical tips here:

2022.02.22 – Practical Tips – Capacity Assessment (dVL)