Queensland has updated the Capacity Assessment Guidelines which are to be applied in assessing an adult’s capacity to make decisions. The Guidelines assists practitioners, families and the public in testing the key criteria of capacity. The following summarises the critical sections of the Guidelines.
What is capacity?
Capacity is a legal term referring to the ability to exercise the decision-making process.
When an adult has capacity to make a certain decision, they are able to:
» understand and retain (even for a short while) the information relating to the decision
» understand the main choices available
» understand and weigh up the consequences of the choices
» communicate the decision
» make a decision freely and voluntarily.
It is the adult’s ability to exercise the decision-making process that is assessed when you carry out a capacity assessment.
It is important to remember that while an intellectual or cognitive impairment might impact on an
adult’s decision-making ability, it doesn’t necessarily mean they lack capacity. The same can be said
for mental illness, brain injury, dementia and age. Whether the adult makes a decision that others
might think is wrong, risky or immoral is also irrelevant.
The five principals in assessment of capacity:
- Always presume an adult has capacity: Under the law it is not up to the adult in question to prove they have capacity. It is presumed that every adult has capacity to make all decisions until proven otherwise. This presumption is not affected by any personal characteristics such as disability, mental illness or age (if the person is over 18 years of age). The responsibility is on the person seeking to challenge the adult’s decision-making capacity to prove the adult has impaired capacity. This can be done through a capacity assessment.
- Capacity is decision-specific and time-specific: Capacity is specific to the type of decision to be made and the time the decision is made. Someone might have capacity to make certain types of decisions (e.g. a personal decision about where to live) and not others (e.g. a financial decision about whether to sell their house).
- Provide the adult with the support and information they need to make and communicate decisions:
- Capacity can fluctuate: Capacity can change or fluctuate. An adult with a medical condition or illness may temporarily lose capacity, but then regain capacity at a later date. On the other hand, an adult with dementia or delirium, for example, might have capacity on some days (or during some parts of the day)and not others.
- Capacity can change with support: An adult’s capacity can improve depending on the support available to them. For this reason, an adult cannot be found to lack capacity until all practical steps have been taken to provide the support and information needed to make the decision.
- Assess the adult’s decision-making ability rather than the decision they make: An adult is free to make bad or poor decisions, provided they have the decision-making ability to make that decision. It is not the decision that is tested, but the capacity to make any decision.
- Respect the adult’s dignity and privacy: This process is perhaps the most invasive and overwhelming in the adult’s life. At all times, the adult is to be given dignity and privacy in the process and given full advantage of assistance to ensure that the adult’s decision-making capacity is truly impaired. Planning the capacity ahead of time and performing the assessment in circumstances comfortable to the adult are critical.
Tests of Capacity:
- General test of capacity —is applied when assessing capacity for decisions about personal,
health or financial matters. This test requires the adult to:
- understand the nature and effect of decisions about the matter;
- freely and voluntarily make decisions about the matter; and
- communicate the decision in some way.
- Test for making an enduring document—is applied when assessing capacity for making an
advance health directive or enduring power of attorney. This test requires the adult to:
- understand the nature and effect of the document. The law requires the adult to actually understand the powers the document gives and when it operates and how and when it can be cancelled or revoked; and
- make the document freely and voluntarily.
Our practitioners are frequently called to assist families in both the making of estate planning documents, and in effecting processes once loved ones lose capacity or there is a question of a loss of capacity. We are compassionate and understanding, and can assist in a wide range of services when this time comes.
If you or your family has a concern about capacity or wishes to make estate planning instruments, please do not hesitate to contact our scheduling director, Vicki Baker, on 61 7 5574 3560 or Vicki@nautiluslaw.com.au to arrange a meeting. We conduct meetings by Zoom or in person.
Thank you – Katrina Elizabeth Brown, Senior Lawyer (Katrina@nautiluslaw.com.au)