Section 1 has three parts. Select a link from the list below for more information about each topic.
Capacity at a glance
Who is the Toolkit for?
How do I use the Toolkit?
In this Toolkit 'capacity' is a legal word. We use the term to refer to an adult's ability to make a decision for themself.
Under the law, you must presume that every adult has capacity.
Sometimes you may be the person who decides whether another person has capacity.Generally, when a person has capacity to make a particular decision they can:
understand the facts and the choices involved
weigh up the consequences, and
communicate the decision.
However, for some decisions there is a specific legal test for capacity. When you are assessing a person's capacity to make any of these decisions you must consider the particular matters outlined in the legal test. The test you use depends on the legal area to which the decision relates. There is more about this in Section 5 of this Toolkit.
This Toolkit is for you if you have concerns about the ability of an adult to make decisions for themself. The person may be someone you:
In general, a person's capacity to make day-to-day decisions is not subject to the type of assessment discussed in this Toolkit. Decisions about when to get up, what to wear or what to eat, for instance, are usually supported or made when required by family, friends or other carers, with the person closely involved.However, you may need to assess, or seek an assessment of, a person's capacity when the decision in question is about something significant or has legal consequences.
This Capacity Toolkit applies only to the civil (non-criminal) areas of law. It does not relate to an assessment of a person's capacity under criminal law.
The Capacity Toolkit is not an assessment tool. However,it does provide information about capacity, capacity assessment and the various legal tests of capacity in NSW, all of which will help you when you need to assess a person's capacity
This is a guide only. There is no legal responsibility for you to use the Toolkit.Section 1, the section you are reading now, tells you who will find the Toolkit useful and gives advice on which sections might be of most help to you.Section 2 is about the general concept of decision-making capacity. It outlines some of the main ideas that are linked to capacity.Section 3 sets out capacity assessment principles. These are the basic building blocks for any assessment of a person's decision-making capacity. This section also explains when capacity might be assessed and by whom.Section 4 offers some practical tips on conducting an assessment of capacity.Section 5 will be helpful for people who need to know what the test for decision-making capacity is in a certain area of life. It is divided into three parts, relating to decisions about a person's:1. personal life and personal decisions2. health3. money and property (financial decisions).Section 6 will be useful when you need to know how to support a person to make a decision for themself. This section is about enhancing a person's capacity to make decisions. It also provides information on how to resolve disagreements if they arise.Section 7 contains a list of places where you can find further information or advice.
The Toolkit is not necessarily meant to be read from cover to cover. If you do, you will find some places where the information is repetitive. Where you are looking for particular information you will be able to find it quickly within the Toolkit by using the 'contents' and 'section contents' pages (available where sections are large with many parts). Also the Toolkits colour-coded pages will help you identify the different sections and find information quickly.
If you are:
- Section 2 - What is capacity?- Section 3 - Capacity assessment principles- Section 6 - Assisted decision-making and how can I support a person to make their own decision?
- Section 1 - Who is the Toolkit for?- Section 3 - Who might assess capacity?
- Section 2 - What is capacity?- Section 3 - When should capacity be assessed?
- Section 2 - What is capacity?
- Section 3 - Capacity assessment principles- Section 4 - Tips on assessing capacity.
1. An advocate is someone who supports a person to say what they want, or speaks on behalf of a person, representing their interests in a way that promotes and protects their rights.2. Once you have read the Toolkit it may be helpful to refer to an assessment tool such as those included in Who can decide: The six step capacity assessment process
[See References at page 169]
Capacity Toolkit PDF (1.8MB)
Capacity Toolkit Fact Sheet Word (385KB)
Capacity Toolkit Factsheet PDF (266KB)
Translated Capacity Factsheets
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