Issue Of Capacity

Nov 29, 2021 | Uncategorized | 0 comments

When a Client comes to see us in relation to a legal matter, before taking instructions all solicitors must first consider whether that Client has the ‘capacity’ to understand what they are instructing our firm to do and are able to give us the necessary instructions to do the work. The legal profession’s Rules expressly prevent us from acting unless we are reasonably satisfied on this account.

Capacity is a complex issue – there are different types of capacity and different assessments of capacity depending on whether it is a civil or criminal matter.
Solicitors look at legal capacity and our first presumption is that all adults have legal capacity.
We are not here to judge your decisions but to ensure you are able to understand your decisions and the implications of them.

While we discuss what you want, the reasons why you have made this decision and your general circumstances, we must be alert when your circumstances are of a type where people have traditionally been found to be lacking in capacity such as:

  • 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 or a mental health professional or specialist geriatrician.
Further down the track, were there ever to be a dispute as to whether you had capacity at the time you gave instructions, a letter from these professionals on the file can provide evidence that you did.

We understand that some people like to have a family member or friend attend their solicitor appointment with them. While it is OK to have some support while you are providing your own instructions, the instructions are to come from you as the Client and not from the support person.
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 consider having these documents prepared well before such time as when capacity may become an issue.

Please note Arabic, Chinese, Greek, Italian and Vietnamese translations are also available on the NSW Justice website.