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.
- making and using an
advance care directive- medical and dental treatment- other health decisions including non-intrusiveexaminations, 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
The individual sections on the following pages will provide you with:
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.
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
Such decisions include:
There are two occasions when a person's capacity might be assessed in relation to an enduring guardianship document.
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.
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:
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
Remember, when assessing whether a person has the capacity to appoint an enduring guardian, it is important that you:
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.
'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 Division of the NSW Civil and Administrative Tribunal about the situation.'
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.
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 Division of the NSW Civil and Administrative Tribunal (NCAT), or in relation to an existing application, keep in mind that NCAT applies a particular legal test to decide whether a person is someone for whom a guardian could be appointed. NCAT 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:
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.
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:
Remember, when assessing whether a person has the capacity to make everyday personal decisions, It is important that you:
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.
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.
'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
There is information about guardianship and applying for guardianship on the NSW Civil & Administrative Tribunal's website (NCAT) :
Guardianship Division of NCATPh: 1300 006 228www.ncat.nsw.gov.au (click on Guardianship)
Public Guardian has information about guardians at: www.publicguardian.justice.nsw.gov.au
Various factsheets are available by contacted the Information and Support Unit at the PG on (02) 8688 6070 or on their website.
Public GuardianToll free: 1800 451 510Ph: (02) 8688 2650TTY: 1800 882 889www.publicguardian.justice.nsw.gov.au
Solicitors can give you information and advice about guardianship including appointing an enduring guardian. The Law Society of NSW has a list of solicitors on its website. Click on 'Find a lawyer search'. Or ring the 'Solicitor Referral Service' at the Law Society of NSW.
Law Society of NSWPh: (02) 9926 0333www.lawsociety.com.au
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'.
LawAccess NSWPh: 1300 888 529131 450 Telephone Interpreter Servicewww.lawaccess.nsw.gov.au
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
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:
People who are Deaf or hard of hearing use the national relay service to contact any number above, unless a TTY number is specified, call: 133 677.
People with speech impairments use the national relay service speak and listen service 1300 555 727.
18. 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 82.19 & 21. Multicultural NSW has information about interpreters on their website or call Multicultural NSW on 1300 651 500.20. There is information on how to assess if a person has capacity to make an enduring guardian document in
'Enduring guardianship' on page 75.
Capacity Toolkit PDF (1.8MB)
Capacity Toolkit Fact Sheet Word (385KB)
Capacity Toolkit Resource Sheet
Capacity Toolkit Factsheet PDF (266KB)
Translated Capacity Factsheets
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