Capacity does not have to be proven but there may be evidence of incapacity. For example, if a client does not know:
- the issues that face them (even after having them explained) OR
- the approaches available to them OR
- appreciate the reasonably foreseeable consequences of their choices OR
- if their decisions are based on delusional constructs,
AND cognitive impairment is present THEN it can be said they lack capacity.
Medical experts can help with determining whether or not cognitive impairment is present.
Your client’s lack of capacity may be intermittent and you may be able to establish capacity and avoid substitute decision-making just by making an effort to find a better time to interview the client, or a better way to communicate. Lack of capacity may also be due to stress, a move to an unfamiliar environment, infections, hearing and sight difficulties, educational level and language and cultural barriers.
You need to be alert to indicators of incapacity such as the following. Remember that these are indicative only.
|Indicator||Examples of behaviour|
|Poor concentration – limited ability to interact with solicitor or to repeat advice and ask key questions.||Client appears overwhelmed by what you are saying or frequently changes topics during the conversation, going off on tangents, being flippant. You may also sense they are only taking in the gist of what you are saying.|
|Difficulty with recall or memory loss||Client does not remember important details about their personal or family history, their past or current financial situation, what and when any previous documents were signed.|
|Ongoing difficulty with communications||Client is not explaining themselves or their reasoning well to you, they struggle to recall important words, they say very little or do not seem to understand many terms you are using despite attempts to clarify and use simpler language.|
|Lack of mental flexibility||Client is not open to even hearing about other options or potential risks. They may inadvertently return to the same topic of conversation several times.|
|Poor insight or judgment||Client clearly lacks insight or judgment into the degree of risk they are placing themselves in, how vulnerable they are, what the value of their assets currently are.|
|Problems with simple calculations which they did not have previously||This might be elicited by asking about financial ingoings and outgoings, how much they will have left in the bank after a certain amount had been spent or lent.|
|Sense that ‘something about the client has changed’.||Deterioration in personal presentation, isolation, mood or social withdrawal; overly anxious; presenting with a family member or friend when normally they would present alone (this could also be an indication of abuse).|
|Client has changed solicitors several times over a short period, particularly if there has been a change from a solicitor who has advised the client for many years (this could also be an indication of abuse).||Solicitor easily able to change client’s mind about an important decision or appointment. Client giving little consideration to whether the advice is right for them.|
Source: The Law Society of NSW, 2009, A Practical Guide for Solicitors, as amended by Dr Georgina Lowndes, a Project Reference Group member.