personal care, the only clear way to reverse that declaration is to produce a
capacity assessment stating that the person is now capable.
If it appears that a person subject to a statutory guardianship for property may be
found capable, the best step to take is to arrange for a designated capacity
assessor to perform an assessment of the individual’s capacity to make property
decisions. If a person is subject to a court appointed guardianship it may be
necessary to also obtain an assessment of the person’s capacity to make
personal care decisions, depending upon the nature of the guardianship.
There is no obligation upon a person under a guardianship to obtain permission
from their guardian to be assessed, or to use an assessor of the guardian’s
choice. Guardians may argue that any assessment done without their consent or
performed by an assessor not of their choosing is illegitimate.
There is no requirement that only an assessor with specialist training can assess
people with certain conditions or injuries, such as acquired brain injury.
While a specialist’s report may be required when claiming damages based upon
a specific loss of function, a capacity assessment is a different kind of
assessment. A capacity assessor is not trying to compare the person’s previous
state or abilities with their ability after their accident etc.; a capacity assessment
determines whether the person meets a threshold test according to the
established test of being able to understand and appreciate the information
necessary to make a particular type of decisions and the consequences of
making or not making a particular decision. All designated capacity assessors
are qualified to make this assessment.
In some cases, where the individual being assessed may also have difficultly
communicating due to physical or intellectual disability, it may be prudent to
retain an assessor with experience assessing individuals with these
communication disabilities. An assessor with specialized experience may be