What does “Capacity” mean with regard to legal services?
When a client enquires seeking legal advice, all solicitors must first determine “capacity” before taking instructions. This involves the solicitor considering whether the client has the ability to understand what it is they are requesting the legal firm to do. The client must be able to provide the necessary instruction to do the work requested. The legal profession’s rules in Australia expressly prevent lawyers from acting unless they are reasonably satisfied on this account.
Determining capacity in legal matters
Capacity is a complex issue. There are different types of capacity and different assessments for it depending on whether it is a civil or criminal matter.
Solicitors look at legal capacity and our first presumption is that all adults have automatically have it. We are not here to judge your decisions but to ensure you are able to understand your decisions and the implications of them.
We begin by discussing what you want, the reasons why you have made this decision and your general circumstances. Whilst this happens, we must be alert to when your circumstances are of a type where people have traditionally been found to be lacking in capacity. These circumstances include:
- Medical conditions or brain injuries which might affect decision-making
- Decisions that put them at significant risk of harm or mistreatment
- Decisions that are very different to those made previously
Sometimes we will require a second opinion about a person’s capacity from a medical professional. This could be a General Practitioner, a mental health professional or specialist geriatrician. This may be important further down the track were there ever to be a dispute. A letter from these professionals on file can provide evidence that you had capacity at the time you gave instructions.
An individual’s mental capability is not directly linked to their legal rights. Whilst there are circumstances that can affect a person’s legal capacity, as noted above, it should only ever be removed as a last resort. Prior to that point, every attempt should be made to help and support that person in their ability to make decisions that affect their own future.
Support during legal appointments
We understand that some people like to have a family member or friend attend their solicitor appointment with them. It is absolutely ok to have this support while you are providing legal instructions. It is important, however, that the instructions come from you as the client and not from your support person.
Enduring Power of Attorney and Power of Enduring Guardianship
An Enduring Power of Attorney and a Power of Enduring Guardianship can only be put in place to appoint substitute decision-makers while the Client has legal capacity. It is therefore important to have these documents prepared well before such time that this may become an issue. If you foresee the potential need for an Enduring Power of Attorney or a Power of Enduring Guardianship, come and speak with us sooner than later. This can avoid the difficulties that can arise if legal capacity is deemed an issue.
Contact GP Legal
GP Legal are experienced solicitors in the Northern Beaches of Sydney with an additional conveyancing branch in Penrith. If you are require help or advice on any legal matters, please contact us.