You need to assess, or seek an assessment of, a person's capacity when:
It is important to assess a person who may not have the capacity to make certain decisions. Failing to assess them means that they will continue to make their own decisions, which may cause them physical or legal harm.
It is equally important to ensure that you carry out the assessment process correctly so that the result is accurate. An incorrect result may deny a person their right to make a specific decision, or force them to make a decision that they are incapable of making or that may cause them harm.
The following are tips on capacity assessment that will help to ensure that the process is carried out correctly.
Begin by applying the six capacity assessment principles.
1. Always presume a person has capacity
The most basic principle is to presume that a person has the capacity to make all decisions for themself.
2. Capacity is decision specific
Apply the presumption of capacity for every decision the person makes. This is because a person may be able to make some, but not all, decisions for themself.
3. Don't assume a person lacks capacity based on appearances
Do not assume a person lacks capacity because of their age, appearance, disability, behaviour or any other condition or characteristic.
4. Assess a person's decision-making ability - not the decision they make
A person cannot be assessed as lacking capacity simply because they make a decision you think is unwise, reckless or wrong.
5. Respect a person's privacy
Respect a person's right to privacy when you are assessing their capacity.
6. Substitute decision-making is a last resort
If all efforts made to support a person through the decision-making process fail, then you can decide that the person doesn't have capacity to make that decision. It is only then that a substitute decision-maker can make that decision for the person.
A more complete overview of these principles can be found
in Section 3 - Capacity assessment principles on page 27.
Before beginning an assessment, it is important to effectively communicate to the person what you are doing and why. Your aim should be to get the person to participate willingly in the process. You might tell them the following:
In most cases people are willing to cooperate. When a person remains unwilling to participate and there are serious consequences, you may have to take further steps. For example, if you think you may need to start using a power of attorney or enduring guardianship but the person won't assist you in an assessment then you may need to make an application to the Guardianship Division of the NSW Civil and Administrative Tribunal
It is important to understand that people are individuals,come from diverse cultural and linguistic backgrounds,and have different skill levels. When conducting an assessment, be flexible and adaptable to the individual's needs and preferences. Each person should be given the same opportunity to be correctly assessed. You can do this by making a reasonable adjustment (change) 15 to the assessment process.
When making a reasonable adjustment, remember the following:
Culture, language, ethnicity and religion are integral factors in how people make decisions, as well as the decisions they make. They shape how people think, behave and communicate.
For example, in some communities and in some families, individuals with capacity to make their own decisions freely allow others to make important decisions on their behalf. Sometimes a person may allow or prefer the head of a household to make all the important decisions. Or there may be an established pattern where a parent within a family, or an elder of a community, makes certain decisions.
Sometimes the decision-making process is a collective one involving the whole community in meetings and discussions about the decision, such as in some Indigenous communities.
Religious beliefs may impact on the decision made, or how it is made. For example, some Jehovah's Witnesses and Christian Scientists hold particular beliefs that might affect their decisions about various medical treatments.So, when you are determining capacity, make sure you take into account the person's language, ethnicity, cultural values and religious beliefs. You may need to do the following:
Culture and capacity
'Recently I visited with an Aboriginal man to talk about what kind of care or services he might need to help him to remain in his home. Although I had no previous experience with Aboriginal clients, and do not come from an Aboriginal background, I took on this particular client due to staff shortages.
The client and I spent some time discussing his needs and which services he may benefit from, but he still seemed unable or unwilling to make a decision about whether to give me permission to go ahead with the referrals.
At first I thought that he might not have the capacity to make a decision about his service options. I decided to come back at another time and discuss the issues with him again.
The second time I visited, his extended family was around too. I was a bit shocked, and suggested that we put the meeting off until another time. He told me that he had asked them around to his place so that they could listen too. It was noticeable that he felt much more comfortable than he was on my first visit. So, I agreed that his family could join us.
It was a learning experience for me. I had misjudged the importance of involving the man's family in the decision-making process. I now understand that it is important to familiarise myself with a person's culture before an assessment, and to take it into account during the assessment.'
Sarah, aged care assessment team
Assessing a person's capacity means considering complex issues and making difficult decisions. To ensure an accurate assessment it is essential to be objective and impartial about the person's beliefs, values, preferences,feelings and emotions.
In general, when you assess the capacity of a person to make a particular decision, you are considering whether the person can do the following:
For example, some people can tell you the facts about their financial circumstances, but can't solve a problem using those facts. They may know the name of their bank and the value of their assets but not be able to discuss or weigh up options about investing those assets.
There are also situations where a person may not have any experience in making certain types of decisions. You might have to assess whether the person can learn to start making those decisions - see case study on page 125.
In rare instances, such as a person with 'locked-in syndrome', a person may be able to make a decision but is unable to effectively communicate it. The assessment result is that the person lacks capacity.
For different areas of a person's life, different types of decisions need to be made. For some areas there is a specific legal test that applies. When you are assessing a person's capacity to make a decision you must consider the particular matters outlined in the test. The test you use depends on the legal area to which the decision relates.
For further information on each test and how to apply it to an assessment of capacity see
Section 5 'Assessing capacity in each area of life' on page 72.
open-ended questions rather than questions which require only a 'yes' or 'no' answer.
Don't ask leading questions. Leading questions suggest or guide the person to a particular answer.
The aim of questioning is to draw the person into a discussion about the decision, the options and the consequences. That will give you an opportunity to assess the person's ability to understand and weigh up information,choices and consequences.
If the person has someone with them for support, remember to direct all your questions to the person you are assessing, not to the support person. Sometimes, it is a good idea to start the assessment with the support person present. When the person being assessed feels at ease, they may be comfortable having the support person wait outside.
It is important that the person being assessed answers the questions. In some circumstances the person being assessed may need support during the assessment from a neutral person, such as an interpreter
20 or advocate.
You may want to ask the person the following questions:
'How can I support a person to make their own decision?' on page 149 will give you further tips about environment and communication.
Decisions must be made freely and voluntarily. The person feel pressured or deceived into making a decision they would not otherwise make.
People who have difficulty making decisions, or who are dependent on others financially, physically or emotionally, are more at risk of being unduly influenced.
To find out whether the person's decision is what they wanted, start by asking them who else was involved in the decision-making process. Seek to determine whether the involvement amounted to supporting the person through the decision-making process, or whether the involvement has been overbearing and has distorted the person's real wishes.
This is difficult where there may be an established or assumed power difference or where there is an on-going pattern of interaction between two people.
If you suspect undue influence, try communicating with the person making the decision, without the other person present. Ask questions that will separate the views of the person from the views of others.
You may also need to suggest that the person obtain some independent advice from a lawyer, accountant or financial advisor depending on the nature of the decision.
14 See Section 6 'Resolving disagreements'. See page 156.
15 Many of the ideas outlined in 'How can I support a person to make their own decision?', on page 149, can be used as a reasonable adjustment to the assessment process.16 & 17 Multicultural NSW has information about interpreters on their website:
www.multicultural.nsw.gov.au/ Or call on 1300 651 500.
Capacity Toolkit PDF (1.8MB)
Capacity Toolkit Fact Sheet Word (385KB)
Capacity Toolkit Factsheet PDF (266KB)
Translated Capacity Factsheets
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