Courts have the power to order assessments of a person’s capacity to manage their property and/or personal care. Such an order is often necessary in situations where there is a dispute as to whether a person is capable or not or the “degree” of incapacity.
However, when asking for an assessment to be conducted be careful what you ask for. Courts will go so far as to recommend or require a specific assessor even when an assessment has already been done.
Court ordered assessments are like a court ordered expert chosen to assist the court and be objective. The effect however may be to preclude the parties from being able to submit it into evidence and to rely upon their own privately obtained assessments. If the assessor is important to your client it would be prudent to provide a list of qualified assessors for the court to choose from.
The advising lawyer should also be wary of advising their client to have an additional assessment done by an assessor other than the one appointed by the court or risk the court finding the lawyer in breach of the court order and potentially responsible for costs personally (Brown v. Glawdan, 1998 CarswellOnt 1776).
Lesson Learned: Think carefully through the request for a court ordered assessment.
Until next time