How to Declare Someone Mentally Incompetent in Ontario

By Lyle Burwell
In Ontario, only a judge in a court of law can declare a person mentally incompetent.

Court image by Yuriy Rozanov from Fotolia.com

In Ontario, Canada individuals cannot be declared mentally incompetent by anyone except a judge in a court of law. A capacity hearing before an Ontario judge is only granted on the application of a qualified capacity assessor. Capacity assessors are certain health care and social service professionals as defined in the Ontario Substitute Decisions Act. Certification of capacity assessors is the responsibility of the Capacity Assessment Office of the Ontario Ministry of the Attorney General.

Contact the Ministry of the Attorney General Capacity Assessment Office and request a list of active capacity assessors in your area.

Make appointments to interview a few assessors. You are responsible for contacting and contracting with a capacity assessor. According to the Capacity Assessment Office, charges range from $70 to $150 per hour, as of January 2011.

Interview the assessors. Bring any documentation you consider relevant, including notarized statements from witnesses to instances of mental incapacity on the part of the person involved. If you know the subject will refuse to be assessed, discuss how to arrange a covert assessment.

Retain the services of your chosen assessor and follow any instructions regarding the staging of the assessment. Following the assessment, the assessor will submit findings to you and to the Ministry. If the assessor recommends a competency hearing, you will be notified when it is put on a docket.

Attend the hearing. If a finding of incompetency results, guardianship will go to the person holding the most recent power of attorney (POA) executed when the subject was still competent. If no POA exists, the court will appoint a Guardian of Property.

If you wish to be appointed the subject's Guardian of Property, you must apply to the Superior Court of Justice. The details of what to include in the application are contained in the Substitute Decisions Act. The application may be made and submitted before the final decision on competency has been determined.

About the Author

Lyle Burwell has been writing professionally since 1978. His “Call Centers in the New Millennium” (ICM Global Intelligence (1999)) was the most checked out volume in the AT&T corporate library in 2000. His areas of expertise include business strategy and telecommunications. He has a diploma in broadcasting from Algonquin College.

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