without the client’s permission.^40 Advise your client to refuse to submit to an
assessment unless you have arranged the assessment. This will ensure that any
competing opinions the guardian may present will be based on a review of the
records, rather than actual interaction with the individual. An assessment based
upon interaction with the individual should always be given more weight than an
assessment based on a review of documents and reports alone.
c. Court Ordered Assessments (s. 79(1) SDA)In order to overcome the client’s refusal to consent to an additional assessment,
a guardian may seek an order from the Court compelling the client to submit to
the assessment, pursuant to s. 79(1) of the SDA. Such orders remove the
individual’s right to refuse an assessment.
The court should not issue such an order unless very specific circumstances are
present. Generally, s. 79(1) assessments are used ‘up-front’ when attempting to
have a person declared incapable and a guardianship imposed, but the individual
is refusing to allow their capacity to be assessed at all. In such instances, a s.
79(1) order can be used to provide the court with the information required to
determine whether a guardianship is required. It is more unusual for a s. 79(1)
order to be granted in the context of a motion to terminate a guardianship. In the
context of a termination, if positive capacity assessments have been presented to
the Court, unless there is clear evidence that those assessments are invalid,
seriously flawed or do not meet the statutory requirements, no other assessment
should be ordered.
Section 79(1) requires that the judge be satisfied that there are reasonable
grounds to believe that the person is incapable. This can pose challenges given
that a person attempting to terminate a guardianship is, by virtue of their being
under a guardianship, officially incapable. However, this fact cannot be used as
(^40) See Substitute Decisions Act, 1992, s 78(1).