- Download the Part X guide
- Terms used in this guide
- Does Part X of the CYFSA apply to you?
- Collection, use, and disclosure of personal information
- Consent and capacity
- Elements of consent
- Consent may be implied in some cases
- Consent may be written or verbal
- Presumption of consent’s validity
- Conditional consent and withdrawal of consent
- Capacity to consent
- Substitute decision-makers
- Safeguarding and managing personal information
- Access to records of personal information
- Individual’s right of access
- Access exceptions
- Is the record dedicated primarily to the provision of service to the individual?
- How are access requests made?
- Service provider’s response to access requests
- Substitute decision-makers can request access
- Correction of records
- Offences and immunity
- The role of the Information and Privacy Commissioner
Determining an individual is incapable
When you determine that someone is incapable, it affects their right to make some or all decisions about their personal information. You must give the individual information about the consequences of this determination if it is reasonable to do so.69
The determination of incapacity is specific to an individual’s rights under Part X — it does not impact their right to make decisions about other matters unrelated to their personal information.
Service providers are responsible for determining capacity under Part X. However, people have a right to challenge determinations of incapacity through an application to the Consent and Capacity Board.70
69. CYFSA, s. 304(2). This section also requires you to provide the incapable person with prescribed information, while section 304(1) requires you to make determinations of incapacity in accordance with any prescribed requirements and restrictions. Nothing is currently prescribed under either of these subsections.
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