Listed below are some of the more common tests for capacity, however, attorneys must ensure they keep up-to-date with the most recent statutory or common law capacity tests in estates and trusts law. Despite the many different legal tests for capacity, the fundamental issue is whether the client is able to:

  • Understand the facts involved in the decision-making and the main choices;
  • Weigh up the consequences of those choices and understand how the ?consequences affect them; and
  • Communicate their decision.

If a client has ongoing difficulty in demonstrating this level of understanding then this may indicate a lack of capacity, which warrants further exploration by legal council. Whenever a client’s capacity may be in issue, it is important to remember and follow the following principles:

  • Always presume a person has capacity
    Under the law you must presume that a person has the capacity to make all his or her own decisions.
  • Capacity is decision-specific
    Apply the presumption of capacity for every decision a person makes. If a client can make some but not all decisions, then they have a right to make as many decisions as possible.
  • Capacity is fluid
    A person’s capacity can fluctuate over time or in different situations, so you will need to assess their capacity for each decision whenever there is doubt about capacity. Even where a client lacked the ability to make a specific decision in the past, they might be able to make that decision later on. Clients might also regain, or increase their capacity, for example by learning new skills or taking medication. ?Other factors such as stress, grief, depression, reversible medical conditions ?or hearing or visual impairments may also affect a person’s decision-making capacity.
  • Don’t make assumptions that a person lacks capacity because of their age, appearance, disability or behavior?
    A person’s capacity should not be assessed solely on the basis of the way a person looks, the way a person presents, the way a person communicates, a person’s impairment? and/or the way a person acts or behaves.
  • Assess a person’s decision-making ability, not the decision they make
    A client cannot be assessed as lacking capacity merely because they make a decision you think is unwise, reckless or wrong. Individuals have their own values, beliefs, likes and dislikes, and the majority of people take chances or make ‘bad’ decisions occasionally.
  • Respect a person’s privacy
    Assessing a person’s capacity means dealing with personal information about them and there are a variety of legislative and ethically based privacy principles, which are involved. In most cases, a client must consent to their personal information being provided to others.
  • Substitute decision-making is a last resort
    A client may be able to make a particular decision at a certain time because they have support during the decision-making process (assisted decision-making). Before concluding lack of capacity, ensure that everything possible has been done to support the client to make a decision. Only seek the appointment of a substitute decision-maker such as a guardian, trustee or financial manager as a last resort.
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