Generally, capacity assessments, performed by a qualified capacity assessor,
confirming a person’s capacity, will be sufficient to justify termination of a
guardianship.
b. When Guardian Opposes MotionIn some cases, however, a guardian or other relative may oppose the motion,
presenting affidavit evidence or other information to persuade the Court that the
positive capacity assessments are not valid.
It may be necessary for the ‘incapable’ person’s representative to remind the
court that capacity is not based upon the wisdom of a person’s choices. Also,
although input from family members is useful, a capacity assessment performed
by a designated capacity assessor will generally be given more weight by the
Court than informal information provided by relatives or the guardian. An
assessor is trained to assess a person’s ability to “appreciate and understand”,
without making value judgements about the quality of the individual’s decisions.
In most cases, unless there is clear evidence that the assessments in question
do not meet the necessary standards, the professional opinion of the qualified
assessor should be sufficient to overcome concerns of relatives.
In some cases, however, a guardian may launch a more vigorous attack on the
incapable person’s attempts to terminate the guardianship. They may present
information to demonstrate the person’s inability to function, they may attack the
assessor’s qualifications, or claim that the assessor failed to consider necessary
information. They may present a competing opinion from another expert or
demand that a formal assessment be done by another assessor of their choice.
Regardless of whether a guardian wants to have their own assessor evaluate
your client, it is necessary to keep in mind that no one can assess your client