A cornerstone of our law is the presumption that adults have legal capacity to make their own decisions unless proven otherwise. But because decision-making capacity is issue and decision specific, this can mean that someone may have decision-making capacity for some easier decisions, such as getting married, but not for other more complex ones, such as making a will, leading to some unusual outcomes.
For example: Noah is a widowed elderly gentleman living in a nursing home. His estate plans were set up years ago and his will leaves his estate to his two sons. These days Noah has dementia and is losing decision-making capacity, however, he finds companionship in the nursing home and marries Allie. A lovely way to live out his days with his new wife. However, the act of Marriage has now voided Noah’s will.
Noah has the capacity to get married but does not have capacity to make a new will. This means Noah’s long standing wishes in his will are disregarded. When Noah dies, based on the laws of intestacy (the laws that apply when someone dies without a will) much or all of his estate passes to his new wife, Allie.
Decision-making capacity assessment
Because of the significant ramifications that can flow from someone having or not having capacity to make certain decisions, it is critical that the correct evidence is applied to the correct legal tests wherever a decision is proposed or made where a person’s capacity is in some doubt. Making sure the right evidence is applied to the right test can help ensure an elderly or disabled person’s autonomy is preserved and respected and can avoid costly future legal disputes if a particular decision or transaction is disputed after the fact.
Generally, a person’s decision-making capacity in relation to any particular decision is assessed based on:
- Whether they are able to understand information relevant to the specific situation/decision to be made;
- Whether they are able to retain information to the extent necessary to make the decision;
- Whether they can use or weigh that information as part of the process of making the decision;
- Whether they can assess the consequences of making the decision; and
- Whether they can communicate the decision and their views on that decision/why it has been made.
Capacity is a legal concept rather than a medical one, and different legal tests are applicable in different situations. However, assessing capacity is complex and in making capacity assessments, legal practitioners will often interact with medical practitioners and specialists such as a neuropsychologists to reach a conclusion.
Capacity is also fluid and can fluctuate. A person may have capacity on one day but not on another, or a person might have capacity in the morning but not later on in the day (this is particularly prevalent in the elderly).
Obtaining high-quality evidence at the time of a potentially contentious transaction can avoid future disputes that can drag on for years where costs may stretch into the triple figures. Too often, we see brief “one liners” from a person’s General Practitioner which might claim the person does or does not have decision making capacity but is of little evidentiary value because its not clear how they arrived at that conclusion, what decision their assessment relates to and what test they applied to get there.
Indications someone may not have capacity
Some signs that may indicate a person in your life’s decision making capacity could be in doubt include:
- Memory loss and other cognitive impairment;
- Vulnerability to undue influence;
- Difficulties with communication;
- Sudden changes in views and beliefs;
- Difficulties with problem solving;
- Being disoriented;
- Others speaking for them;
- Suffering from delusions;
If you have concerns about a person’s capacity to make certain legal decisions, it is important that that the proper assessments and correct tests are completed and you get professional advice about the thresholds and tests which need to be reached for a person to be able to make those decisions.
How we can help
If you suspect a vulnerable person’s capacity to make a certain legal decision (such as getting married, entering into a legal transaction, making a Will or appointing an Enduring Power of Attorney) is impaired, we can assist in applying the appropriate tests to assess their decision-making capacity and ascertain whether they are able to do so.
Please contact us for more detailed and tailored help
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.