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How To Assess Capacity Guide

Paul December 15, 2019

In assessing capacity always have the following principles in mind at all times:
• Presume a person has capacity;
• Capacity is decision-specific;
• Capacity is fluid;
• Don’t assume a person lacks capacity based on appearances (eg because of their age, disability or behaviour);
• Assess the person’s decision making ability – not the decision they make;
• Respect a person’s privacy;
• Substitute decision-making is a last resort

Capacity to Appoint a Power Of Attorney
Here are some questions you may ask as part of the assessment process to determine if the person has capacity to appoint a Power of Attorney:
•Explain to me what a Power of Attorney is;
•Why do you want to appoint someone as your Power of Attorney?
•When does the Power of Attorney begin?
•What sort of decisions will your attorney be able to make for you?
•Why would you choose this person?
•Do you understand that when you loose capacity you can’t change the Power of Attorney?

Here are some questions you may ask as part of the assessment process to determine if the person has capacity to appoint a Power of Attorney:
•Do you have a medical certificate from a doctor saying that they believe you have the capacity to appoint a Power of Attorney?
•Are you on any medication?
•What do your friends and family think about you appointing a Power of Attorney, and about whom you are choosing to be the attorney?
•What happens if you decide that you want to change or cancel your Power of Attorney?

Are there any warning signs that the person might lack capacity?
For example, they might:
•Have difficulty with recall or have memory loss;
•Have ongoing difficulty with communications;
•Demonstrate a lack of mental flexibility;
•Have problems with simple calculations which they did not have previously;
•Be disoriented •Be in hospital or a residential aged care facility when making the decision;
•Be accompanied by many other friends, family or carers but not given the chance to speak for themselves;
•Show a limited ability to interact with you (eg is unable to repeat your advice or ask key questions about the issues);
•Suddenly changes core values or long-held beliefs.

If there are warning signs, you need to drill down and satisfy yourself before witnessing:
•Ask questions to assess if the person understands the particular transaction;
•Ask open-ended questions rather than questions which can be answered by “yes” or “no”;
•Do not ask leading questions which suggest the answer;
•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;
•Make sure that it is the person being assessed who answers the questions;
•Spend sufficient time with the person to explore the issues;
•If you are concerned, take detailed notes and document the process used to establish capacity;
•Where possible, note all questions and answers – ideally verbatim;
•Include opinions of other witnesses about the client’s capacity;
•Remember to include basic information about the date, the time of the interview, who was present, the length of the interview and the location;
•Meet the person alone at some stage;
•Remember: only take instructions from the person themselves;
•Be wary of potential undue influence.

What happens if You Decline to Witness?
If you have concerns, you should refer the person to their lawyer or solicitor for follow up;
•The person’s solicitor or lawyer should refer them to a doctor for an assessment;
•There is a formal process recommended by the various law institutes in each state, e.g. Law Institute of Victoria to help manage these sorts of cases;
•As a last resort, the lawyer or solicitor may make application to CAT ( Civil and Administrative Tribunal) in respectve state for the appointment of a Substitute Decision Maker.

Above All Else
•Don’t assume a person lacks capacity based on appearances (eg because of their age, disability or behaviour);
•Assess the person’s decision making ability – not the decision they make;
•Respect a person’s privacy;
•Be compassionate and understanding;
•Show the same respect you would want in the same circumstances

Assessing Capacity

The following form is provided as a sample and can be used as a template to assist for assessing capacity.

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