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Substitute Decisions Act, 1992

ONTARIO REGULATION 460/05

CAPACITY ASSESSMENT

Consolidation Period: From December 1, 2005 to the e-Laws currency date.

No amendments.

This is the English version of a bilingual regulation.

Definition

1. In this Regulation,

“qualification date”, when used in reference to a person, means,

(a) the date he or she successfully completes the qualifying course required by clause 2 (1) (b), or

(b) December 1, 2005, in the case of a person who, on November 30, 2005, is qualified to do assessments of capacity under Ontario Regulation 293/96 (Capacity Assessment) made under the Act. O. Reg. 460/05, s. 1.

Persons qualified to do assessments of capacity

2. (1) A person is qualified to do assessments of capacity if he or she,

(a) satisfies one of the conditions set out in subsection (2);

(b) has successfully completed the qualifying course for assessors described in section 4;

(c) complies with section 5 (continuing education courses);

(d) complies with section 6 (minimum annual number of assessments); and

(e) is covered by professional liability insurance of not less than $1,000,000, in respect of assessments of capacity, or belongs to an association that provides protection against professional liability, in respect of assessments of capacity, in an amount not less than $1,000,000. O. Reg. 460/05, s. 2 (1).

(2) The following are the conditions mentioned in clause (1) (a):

1. Being a member of the College of Physicians and Surgeons of Ontario.

2. Being a member of the College of Psychologists of Ontario.

3. Being a member of the Ontario College of Social Workers and Social Service Workers and holding a certificate of registration for social work.

4. Being a member of the College of Occupational Therapists of Ontario.

5. Being a member of the College of Nurses of Ontario and holding a general certificate of registration as a registered nurse or an extended certificate of registration as a registered nurse. O. Reg. 460/05, s. 2 (2).

(3) The requirement that the person hold a general certificate of registration as a registered nurse or an extended certificate of registration as a registered nurse, as set out in paragraph 5 of subsection (2), does not apply to a member of the College of Nurses of Ontario who, on November 30, 2005, is qualified to do assessments of capacity under Ontario Regulation 293/96 (Capacity Assessment) made under the Act. O. Reg. 460/05, s. 2 (3).

(4) Clause (1) (b) does not apply to a person who, on November 30, 2005, is qualified to do assessments of capacity under Ontario Regulation 293/96 (Capacity Assessment) made under the Act. O. Reg. 460/05, s. 2 (4).

Guidelines

3. (1) The “Guidelines for Conducting Assessments of Capacity” established by the Attorney General, dated May 2005 and available on the internet website of the Ministry of the Attorney General at www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity.asp are prescribed. O. Reg. 460/05, s. 3 (1).

(2) An assessor is required to comply with the prescribed guidelines. O. Reg. 460/05, s. 3 (2).

(3) Failure to comply with the prescribed guidelines may result in a complaint to the college of the regulated health profession of which the assessor is a member. O. Reg. 460/05, s. 3 (3).

Qualifying course

4. The qualifying course required by clause 2 (1) (b) shall be given or approved by the Attorney General, and shall include,

(a) instruction in,

(i) the Substitute Decisions Act, 1992,

(ii) best practices in completing forms and reports under that Act,

(iii) standards for the performance of assessments of capacity, as set out in the guidelines referred to in section 3, and

(iv) procedures for determining if a person needs decisions to be made on his or her behalf by a person authorized to do so, as set out in the guidelines referred to in section 3; and

(b) an evaluation of the trainee’s mastery of the training. O. Reg. 460/05, s. 4.

Continuing education courses

5. (1) To remain qualified to do assessments of capacity, an assessor is required to successfully complete a continuing education course given or approved by the Attorney General,

(a) on or before the second anniversary of his or her qualification date; and

(b) thereafter, at intervals of two years or less. O. Reg. 460/05, s. 5 (1).

(2) A continuing education course shall include,

(a) participation in one or more training activities; and

(b) submission to the Ministry of the Attorney General, for review and comment, of at least two recently completed Statements of Assessor in Form A or Form B and the recently completed corresponding Assessment Reports in Form C. O. Reg. 460/05, s. 5 (2).

(3) Personal information shall be removed from forms before they are submitted under clause (2) (b). O. Reg. 460/05, s. 5 (3).

Minimum annual number of assessments

6. To remain qualified to do assessments of capacity, an assessor is required to do at least five assessments,

(a) during the two-year period following his or her qualification date; and

(b) thereafter, during each two-year period. O. Reg. 460/05, s. 6.

Forms

7. The following forms provided by the Attorney General and available on the internet website of the Ministry of the Attorney General at www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity.asp are prescribed:

1. “Form A: Statement of Assessor — Determination of Capacity/Incapacity or Certificate of Incapacity — Property” for the purpose of subsection 9 (3) or 16 (3) or section 72 or 73 of the Act, dated May 2005.

2. “Form B: Statement of Assessor — Determination of Capacity/Incapacity — Personal Care” for the purpose of subsection 49 (2) or section 74 or 75 of the Act, dated May 2005.

3. “Form C: Assessment Report” for the purpose of subsection 78 (4) of the Act, dated May 2005.

4. “Form D: Statement of Assessor — Regarding Capacity to Grant a Power of Attorney for Personal Care with Special Provisions” for the purpose of paragraph 2 of subsection 50 (1) of the Act, dated May 2005.

5. “Form E: Statement of Assessor — Regarding Capacity to Revoke a Power of Attorney for Personal Care with Special Provisions” for the purpose of subsection 50 (4) of the Act, dated May 2005. O. Reg. 460/05, s. 7.

8. Omitted (revokes other Regulations). O. Reg. 460/05, s. 8.

9. Omitted (provides for coming into force of provisions of this Regulation). O. Reg. 460/05, s. 9.

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