I. INTRODUCTION
This chapter deals with situations where capacity is at the core of the legal issues
for which a client is seeking assistance such as defending, protecting or restoring
a client’s ability to make decisions after they have been declared incapable or
resolving disputes related to the actions of a guardian or other substitute decision
maker (SDM).^1 This paper does not deal with the process of declaring a person
incapable.^2 Instead it focuses on issues relevant to assisting a client who has
already been declared incapable and has been made subject to a substitute
decision maker. For more general information about defending capacity,
assessing capacity to instruct counsel and accommodating clients with capacity
issues, see Chapter 4 entitled “Capacity to Instruct Counsel: Promoting,
Respecting and Asserting Decision-Making Authority” in this Disability Law
Primer.
This chapter provides a basic overview of the substitute decision making regime
established by the Substitute Decisions Act, 1992 (SDA). It describes the types of
SDM’s and how they acquire the legal authority to make decisions for an
‘incapable’ person. The chapter outlines the various issues persons subject to an
SDM may face and suggests options to help deal with those issues in a manner
that protects the rights of persons with capacity issues and promotes their
autonomy to the greatest extent possible. This is a complex area of law. This
chapter does not purport to offer a complete or detailed guide to every issue that
can arise. The chapter merely highlights key issues to consider and offers a
starting point for lawyers’ and advocates’ own research into the specific issues
faced by individual clients.
(^1) This paper has benefited from the input of many individuals. The contributions of Kerri Joffe and
Jan Goddard were particularly helpful. 2
The most common ways for a person to be declared incapable are a) by a psychiatrist after an
assessment pursuant to the Mental Health Act; b) after a capacity assessment by a designated
capacity assessor (also see s. 16 of the Substitute Decisions Act, 1992. The Act provides that
members of the public can report someone they think is incapable and at risk of harm to the
Public Guardian and Trustee for investigation); c) by the Superior Court of Justice pursuant to the
Substitute Decisions Act.