Section 5 - Assessing capacity in life

 

There is no 'one size fits all' legal test for whether a person has capacity in any given situation. This is because people differ, decisions differ and laws differ.

Decisions can be divided into the three following areas.

5.1 Personal life:
- making and using an enduring guardianship- personal decisions including accommodation and support services.

- personal decisions

5.2 Health:

- making and using an advance care directive
- medical and dental treatment
- other health decisions including non-intrusive
examinations, over the counter medication and alternative therapies.

5.3 Money and property:
- entering into a contract
- making a power of attorney and making and using an enduring power of attorney
- financial decisions
- making a will.

The individual sections on the following pages will provide you with:

  • the legal test, and
  • a checklist which will assist you to apply it.
The questions you ask the person during an assessment of capacity should reflect the legal test of capacity for that type of decision.

There are some sample questions provided for each test.

These questions aim to assist you in gathering information from the person that will help you to decide if the person has capacity to make the decision in that particular area of life.

Enduring guardianship

When a person makes an enduring guardianship appointment (in an enduring guardianship document) they are choosing someone to make personal and health decisions on their behalf if they lose capacity at some time in the future 21.

Such decisions include:

  • how and where the person lives
  • decisions about support services
  • who the person might want to see and when
  • medical and dental treatment decisions.

There are two occasions when a person's capacity might be assessed in relation to an enduring guardianship document.

1. When the document is being made

For the appointment of an enduring guardian to be legal,the person making the enduring guardianship document must have capacity at the time they are signing it.

Certain people are required to undertake an assessment of the person's capacity to make an enduring guardianship document before witnessing the making of the document. These include solicitors, barristers, and local court registrars.

2. When the document needs to be used

This assessment is triggered by concern about whether the person who made the enduring guardianship document still has the capacity to make their own personal or health decisions. If they are found to lack capacity, the enduring guardian can make the decision for the person.

It may be the individual named as enduring guardian who will undertake, or seek, an assessment of whether the person has lost the capacity to make the personal or health decision. Or it may be a medical or dental practitioner.

The remainder of this section is concerned only with the first point: the test for capacity to make an enduring guardianship document. In relation to tests for the second point, you will find information about assessing a person's capacity to make:

Legal test

This is what you are looking for when you are assessing whether a person has the capacity to appoint an enduring guardian:

CAPACITY = UNDERSTANDING THE NATURE + EFFECT OF THE DOCUMENT AT THE TIME IT IS MADE

Checklist

  • Does the person understand the nature and effect of the enduring guardianship document they are making at the time it is made, not hours or days before or after it is made?
  • Does the person understand the 'nature' of what they are doing by making an enduring guardianship? Are they familiar with the general idea of enduring guardianship?

More specifically:
  • Do they understand they are appointing someone to make personal decisions on their behalf if they lose the capacity to do this for themself?
  • Do they understand they can appoint different people to make decisions in different areas of their personal life, such as:
    • accommodation
    • services they might want
    • access to people they might want to see and when
    • health?
  • Does the person understand the 'effect' of the appointment? Can they identify the general result of an enduring guardianship appointment? Do they understand the following:
    • The enduring guardian's powers will come into effect when the person lacks capacity in a particular area?
    • The enduring guardian's powers will continue while the person is unable to make decisions in a particular area?
  • Is the person freely and voluntarily appointing the enduring guardian?
  • Can the person communicate the above, with assistance if necessary?
If the person wants to change or revoke an existing enduring guardianship document, capacity needs to be assessed at that time. As well as the above, you need to find out:
  • Does the person know how and why the new document is different from the old?
  • Does the person know the nature and effect of changing or revoking the existing enduring guardianship document?

Remember, when assessing whether a person has the capacity to appoint an enduring guardian, it is important that you:

  • ask open-ended questions
  • do not ask leading questions
  • frame your questions to quickly identify any areas of concern for which a person may need support or help, or require a substitute decision-maker
  • ensure it is the person being assessed who answers the questions. In some circumstances the person may need support from a neutral person such as an advocate or an interpreter. 22

Questions

Here are some specific questions you may ask as part of the assessment process to determine if the person has capacity to appoint an enduring guardian.

  • Explain to me what appointing an enduring guardian is about.
  • Why do you want to appoint somebody as an enduring guardian?
  • If you do appoint an enduring guardian, when will your enduring guardian be able to make decisions for you?
  • What sorts of decisions will your enduring guardian be able to make for you?
  • Tell me about your family and friends. Who would you want to appoint to be able to make decisions for you?
  • Why would you choose that person or those people?
  • Would you want your enduring guardian to make decisions for you in the same way that you would make them?
  • How can you help them understand how you would want decisions to be made? Remember, you may not have the capacity to tell them later.
  • Sometimes people appoint more than one person so they can make decisions together for you. Do you think you might want to do this? Why or why not?
  • Sometimes people appoint several different people as their enduring guardians and each guardian has a particular area of decision-making, such as accommodation, health, services, and access to whom you might see and when. Is this something you would want to do? Why or why not?
  • What do your friends and family think about you appointing an enduring guardian, and what do they think about the person or people you have chosen?
  • What happens if you decide that you want to change or cancel your appointment of an enduring guardian?
  • When would you be able to do this?
Similar questions to those above should be asked if the person wants to change or cancel an enduring guardian appointment.

Also ask:
  • Do you understand what your current enduring guardianship arrangements are, and how do you want to change them? Why?
  • Is anyone prompting you to change the current arrangements and, if so, why?

Case Study

Enduring guardianship

'Anne sent her client, Isabella, to me for an opinion about her capacity to make an enduring guardian document. She was worried that Isabella was being pushed into appointing her son, Chris, as an enduring guardian. Anne suspected that Chris wanted the ability to decide for Isabella where she would live and who she could see for a selfish reason - she thought Chris had a plan to move Isabella into a small unit and then live in her waterfront house himself, without any other family members finding out.

I began talking with Isabella about appointing an enduring guardian. Although she appeared to understand the concept that someone else might make decisions for her, she didn't know what sort of decisions, when they might make them or who she might like to appoint.

I reported to Anne that, at this time, I didn't think that Isabella understood well enough what she would be doing by appointing an enduring guardian and what the consequences for her might be. I suggested to Anne that she speak to the Guardianship Tribunal about the situation.'

Trevor, psychologist


More Information

Personal decisions

Each day a person makes many personal decisions, such as when to get out of bed, what to wear, what to eat, and what to do. Major personal decisions people make
throughout life include where to live, what type of support services to apply for or accept, and which people to associate with.

There are several reasons why a person may need an assessment of whether they can continue making certain personal decisions for themself.

Here are some examples.

  • An assessment may be carried out by a concerned family member, friend or carer who wants to know whether they, or others, should begin making
  • decisions in all or some of these personal areas on an informal basis.
  • An enduring guardian may assess, or seek an assessment of, capacity when they think they should start making decisions in areas where the person seems unable to do so 23.
  • An assessment might be the first step on the path to making an application to the Guardianship Tribunal or the Supreme Court for a guardian to be appointed. Or the assessment might be being prepared for the Tribunal or Court to look at when hearing a matter.

There is no specific legal test for personal decision-making capacity that covers all of the above situations.

However, if you are assessing a person's capacity as part of the process of determining whether an application needs to be made to the Guardianship Tribunal, or in relation to an existing application, keep in mind that the Tribunal applies a particular legal test to decide whether a person is someone for whom a guardian could be appointed. The Tribunal will look at whether the person has a disability, and whether that disability makes them unable to fully or partially:

manage their person

But, in general, when you are assessing a person's capacity to manage their everyday personal decisions, you are considering whether, in relation to the specific area that is of concern, the person is able to:

  • understand the facts involved in the decision
  • understand the main choices that exist
  • weigh up the consequences of the choices
  • understand how the consequences affect them and their situation

Most often you would carry out an assessment in relation to specific areas of concern, such as accommodation decisions or decisions about support services. Questions relating to other areas of personal decision-making may be relevant. This depends on how broad the area of concern is,and on whether you need a complete picture of the ability of the person to manage all personal decisions.

Particular areas relevant to 'managing the person' that you may wish to consider are listed below.

  • How much does the person know about their living arrangements and how to meet their needs?
  • Can the person dress appropriately for the weather and take care of their personal hygiene?
  • Can the person shop for groceries and safely prepare meals, and are they eating properly?
  • Does the person understand their medication routine and follow it?
  • What informal or formal support services such as family care, home care, nursing, Meals on Wheels, domestic cleaning or transport services, does the person get or need?
  • What friends or family does the person see?

Also consider whether there is significant harm, or risk of harm, to the person or others as a result of the person not being able to manage personal decisions. For example:

  • Can the person manage in their present accommodation without posing any threat to themself or others? For instance, is there a fireplace that may cause a fire
  • hazard because of improper use? Is the state of cleanliness a hygiene risk?
  • Is the person at risk due to malnutrition or dehydration,or in danger when cooking such as by cutting themself or leaving things on the stove, or in danger through
  • dressing inappropriately or due to lack of personal hygiene?
  • Are they not taking, or taking too much, medication, and could this be a cause of harm?
  • Are they accepting and accessing relevant services which can assist to prevent risk of harm?
  • Does the person recognise when to seek medical help, know how, and are they able to get medical help when it is needed?
  • Is the person being mistreated, threatened or abused by the people who care for or visit them?
  • A person doesn't have to be able to manage these aspects of their life perfectly, but they do need to be able to manage without causing themself or others significant harm or risk of harm.

Tips on Questioning

Remember, when assessing whether a person has the capacity to make everyday personal decisions, It is important that you:

  • ask open-ended questions
  • do not ask leading questions
  • frame your questions to quickly identify any areas of concern for which a person may need support or help, or require a substitute decision-maker
  • ensure it is the person being assessed who answers the questions. In some circumstances the person may need support from a neutral person such as an advocate or an interpreter. 24

Questions

Here are some specific questions you may ask as part of the assessment process to determine if the person has capacity to make everyday personal decisions.

  • How are you coping with XYZ (the area of concern)?
  • Do you think you are having any difficulties?
If they don't believe they have any problems, then discuss the concerns that have been raised by the people close to them (or whoever it was that recognised the trigger). You are looking for understanding of the situation and insight into what the problem might be. Use the following questions as a basis for discussion:
  • Describe your situation. Why do you think it could be a matter for concern?
  • What do you think could be done to help to address the concern?
  • Tell me what other options there are, and what option you might want to take.
  • What are the pluses and minuses of each option as you see it?
If the person can't tell you these things, share with them the options and the benefits or disadvantages of each, then ask them the questions again. You are looking for indications that the person can understand the information and weigh up consequences.

Case Study

Personal decisions

'One day I surprised my dad by arriving at his place unannounced. I hadn't seen him for six months. I found him standing in the yard dressed in tracksuit pants, woollen socks, a fleecy jumper and a beanie. The problem was that it was 32 degrees that day! Even with the bulky gear on I could see that he had lost a lot of weight.

'Then I went inside and the place was like a sauna. The heater was on. When I asked dad about it he kept saying that turning it on was just what you did when you got up in the morning. He repeated this over and over.

When I opened the fridge there was only yoghurt and a couple of bits of mouldy fruit in there. I asked him about what he was eating and whether he was cooking for himself, but he became very aggressive with me, which had never happened before.

I thought that, as his enduring guardian, I might need to apply for Meals on Wheels to provide a service to him. We talked about the choices he had, and whether he thought he would like Meals on Wheels, but he still didn't understand the need for nutrition. He kept saying that he'd eaten enough through his life to keep him going now! I decided to apply for Meals on Wheels for him and to try to work out if he was still okay to manage the other things in his life. I decided to take the heater away for the summer because I wasn't confident that he understood that he didn't need to heat the place up.'

 

Ben, son and enduring guardian 

More information

Guardianship Division
Toll free: 1800 463 928
Ph: (02) 9555 8500

People who are Deaf or hard of hearing use the national relay service to contact us call: 133 677.

People with speech impairments use the national relay service speak and listen service 1300 555 727.


There is information about guardianship and applying for guardianship on the NSW Civil & Administrative Tribunal's website : www.ncat.nsw.gov.au. Select Guardianship and then Publications.

The NSW Public Guardian
Toll free: 1800 451 510
Ph: (02) 8688 2650

People who are Deaf or hard of hearing use the national relay service to contact us call: 133 677.

People with speech impairments use the national relay service speak and listen service 1300 555 727.

The NSW Public Guardian has information about guardians at: www.publicguardian.justice.nsw.gov.au. Various fact sheets are available by contacting the Information and Support Unit on (02) 8688 6070 or on the website under Information and support then select 'Publications'

Law Society of NSW
Ph: (02) 9926 0300
Toll free: 1800 422 713

Solicitors can give you information and advice about guardianship. The Law Society of NSW can give you a list of solicitors in your area by phoning its 'Solicitor Referral Service' or through its website www.lawsociety.com.au, by clicking on 'Advance find a lawyer search'.

LawAccess NSW
Ph: 1300 888 529
131 450 Telephone Interpreter Service

People who are Deaf or hard of hearing use the national relay service to contact us call: 133 677.

People with speech impairments use the national relay service speak and listen service 1300 555 727.
You might also contact LawAccess NSW which is a free government telephone service that provides legal information, advice and referrals for people who have a legal problem in NSW. Find information about guardianship on its website: www.lawaccess.nsw.gov.au, by clicking on the 'Human rights' tab then selecting 'Guardianship'.

Legal Aid NSW provides free legal advice and in some cases can provide ongoing assistance. To locate the closest office call LawAccess NSW or visit the Legal Aid
Commission's website www.legalaid.nsw.gov.au

Your local Community Legal Centre (CLC) may also provide free advice. A directory of CLCs is available from the National Association of CLCs by phoning (02) 9264 9595 or at its website: www.naclc.org.au

Ageing, Disability and Home Care
Ph: (02) 8270 2000

People who are Deaf or hard of hearing use the national relay service to contact us call: 133 677.

People with speech impairments use the national relay service speak and listen service 1300 555 727.
Ageing, Disability and Home Care (ADHC) has a Planning ahead kit with information on enduring guardians on their website. ADHC has also developed a planning ahead kit for members of Aboriginal and Torres Strait Islander communities called Taking care of business. You can contact ADHC for a copy.

Benevolent Society
Ph: (02) 9339 8000
https://www.benevolent.org.au/​​
The Benevolent Society has a detailed publication, Your future starts now. It is available by phoning, or on its website by clicking on the 'What we do' tab, then select 'Older people' and then 'Planning your future'.


21. An enduring guardianship is not the same as an enduring power of attorney,which is about financial decisions. To obtain detailed information about what an enduring guardianship document is and does, see 'More information' on page 82.

22 & 24. Multicultural NSW  has information about interpreters on their website or call Multicultural NSW on 1300 651 500.

23. There is information on how to assess if a person has capacity to make an enduring guardian document in 'Enduring guardianship' on page 75.