Client lacks capacity

If your client cannot provide instructions or make a legal decision on which you can act, and there are no powers of attorney in place, you may have to consider the appointment of a guardian and/or administrator.

This application to the Victorian Civil and Administrative Tribunal (VCAT) is best made by a family member, friend or health care professional, as there may be ethical issues if you were to apply (The Law Society of NSW 2009, p. 9).

Such action should be a last resort, remembering that capacity is decision-specific and that you might be able to assist your client with some legal tasks, such as obtaining an Intervention Order, but not others, such as appointing a financial power of attorney. (See  Substitute decision-making.)


Case study

Adult child’s family moves in with aged parent, who speaks little English, to care for her – later placed in aged care facility – house put on market

Jamilla, in her 70s, returned home after treatment for a broken hip and a serious urinary tract infection (UTI). In hospital she was assessed as lacking capacity to manage her financial affairs and her eldest son, Abraham, took over her affairs. Jamilla has three children and a network of friends.

Abraham and his wife and three children moved into Jamilla’s house because Jamilla needed their support. With her consent, they accessed her bank accounts to fund the building of a bungalow for her and transferred the house into their names, enabled by the Power of Attorney (financial) that she had given them.

Months after Jamilla moved into the bungalow, one of her friends visited and found Jamilla greatly distressed. Jamilla was rarely seeing her grandchildren, felt isolated and bullied by her daughter-in-law and no longer had any control over her finances. Her other children, who live interstate, were fighting with Abraham because they thought it wrong that he, and not they, was advantaged by these new arrangements.

Jamilla’s son then told her that she was to go into aged care because his wife could no longer cope with her. After Jamilla was placed in the aged care facility, her property was put up for sale. No one at the aged care facility speaks her language and she has never before eaten the type of food she is given there.

Jamilla asks her friend to help her. The friend contacts you and with Jamilla’s consent, arranges for you to visit Jamilla in the aged care facility. Jamilla tells you she remembers when she was in hospital some people asking her questions about a country leader and having to count backwards. She does not remember an interpreter being present at the time. She did not receive legal or other assistance.


Is capacity an issue?

You would need to satisfy yourself of Jamilla’s legal capacity or lack of it. Do not rely on the medical assessment made at hospital. It may have been done without an interpreter and Jamilla may have been confused and may have had reduced capacity in that setting (due to disorientation, the pain and stress of her injury, her medication, or an infection—urinary tract infections (UTIs) often result in confusion in older people). Jamilla may have regained or increased her capacity with time and physical recovery.

To make your own assessment you would:

  • Interview Jamilla, preferably at home or in a quiet place, at a time that works best for her, scheduling a longer appointment.
  • Check for hearing and sight issues and use aids where required.
  • Ask Jamilla what she wants. She may have capacity to instruct you to do some things, for example, investigate the asset transfer for her but may not have capacity to do other things, such as revoke a power of attorney.
  • Ask for any power of attorney documents or other documents she has, and question her to see if she understands their nature and effect.
  • Call VCAT to see if any guardianship and administration orders are in place.
  • Seek to obtain medical information about Jamilla with her consent (if you think she has capacity to consent to this).

Are there cultural and language issues to consider in communicating with Jamilla?

See Interviewing the client and Being aware of diversity

After interviewing Jamilla, if you still questioned her capacity, you would seek a second assessment from an expert (a gerontologist, for example) briefing them on the context for the assessment and the type of decisions Jamilla needs capacity for. You would also need to arrange for an independent interpreter and any other communication aids required.

Suggestions for advice and action:

Title search

Caveat (See Caveats.)

Is there an equitable interest? (See Equity.)

Has there been a misuse of the power of attorney? (See Abuse of Enduring Powers of Attorney (Financial).)

Possible action in unconscionable dealing