Is there capacity?
There is a common law presumption of capacity: unless proven otherwise, every adult is able and entitled to make their own decisions, even in situations of abuse. Decision-making capacity is a legal construct and not a medical or health care construct.
There is a lack of clear guidelines and law for assessing capacity. Nevertheless, as a legal practitioner you can:
- make an initial assessment of capacity, using basic questioning and observation of the client and looking for warning signs;
- if in doubt, seek a clinical consultation or formal capacity evaluation (see Expert assessment) by someone with expertise in assessing capacity, such as a psychiatrist, geriatrician or neuropsychologist (see Resources);
- make a final legal judgment about the client’s capacity for the particular decision or transaction (The Law Society of NSW, 2009, p. 1).
You may feel you are faced with a dilemma. On the one hand you might be exposed to liability for negligence for failing to act on instructions to, say, prepare a will or a power of attorney; on the other hand, you might be in trouble for failing to ensure that your client has the required capacity and is not unduly influenced by a beneficiary. (See Hamilton & Cockburn 2009, p. 16.)
If, taking into account the information on capacity in this section, you are still in doubt as to the capacity of a client who is asking you, for example, to draft a new will or other document, it might be best to discuss the matter with the Law Institute of Victoria Ethics Committee. (See also Resources.)
Recommended resources on capacity
- The NSW Capacity Toolkit
- The Law Society of NSW Guide, When a Client’s Capacity is in Doubt
- The Office of the Adult Guardian, Queensland, Capacity guidelines for witnesses of enduring powers of attorney