Section 1 - Capacity at a glance


Section 1 has three parts. Select a link from the list below for more information about each topic.

Capacity at a glance

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.

Who is this Toolkit for?

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:

  • work for or with
  • provide services to
  • care for
  • support.
You may need to assess,or seek an assessment of,a person's capacity in your personal or professional life. You may be a:
  • family member, friend or work colleague
  • advocate 1
  • government or non government employee or volunteer, including:
    • someone who provides services directly to people with a disability, older people or people with a mental illness
    • a housing provider
    • someone who works for an organisation which provides services to people with a disability, older people orpeople with a mental illness
    • a social worker or case manager
  • person who works in the law, including a solicitor, barrister, paralegal or court staff
  • worker in a financial organisation
  • retail worker
  • health care worker, including a doctor, dentist, nurse, therapist or ambulance staff.

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.

How do I use the Toolkit?

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 2.

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 decisions
2. health
3. 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.

Navigating the Toolkit

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.

Case Study

The case studies, highlighted in boxes, provide examples of issues raised when a person's decision-making capacity in question.

Pressed for time?

If you are:

  • supporting a person to make a decision themself, (not assessing capacity) see:

- 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?

  • unsure about whether you are someone who should assess a person's capacity, then read:

- Section 1 - Who is the Toolkit for?
- Section 3 - Who might assess capacity?

  • Not sure whether a person should have their capacity assessed, start at:

- Section 2 - What is capacity?
- Section 3 - When should capacity be assessed?

  • assessing the capacity of a person and looking for information on how to proceed, turn to:

- Section 2 - What is capacity?

- Section 3 - Capacity assessment principles
- Section 4 - Tips on assessing capacity.

  • someone with a lot of knowledge about capacity but needing guidance on assessment in a specific area, go to:
- Section 4 - Tips on assessing capacity
- Section 5 - Assessing capacity in each area of life.

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]

Download the
Capacity Toolkit

Capacity Toolkit cover

Capacity Toolkit PDF (1.8MB)

Decision-making & Capacity E-Learning

A FREE 30 minute E-learning based on the Capacity Toolkit has been designed for professionals who work with people with decision-making disabilities in legal, health, finance, social work and for carers. Learn how to empower people with decision-making disabilities to make decisions for themselves. To view select:

Decision-making and capacity E-Learning