Handbook for Practitioners on Legal Capacity

A fellow JP recently attended a workshop given by the Office of the Public Guardian (OPG) at the JP Branch. The instructor mentioned the Queensland Handbook for Practitioners on Legal Capacity 1 July 2014 (Handbook) published by the Queensland Law Society. It is used by Queensland lawyers to determine the legal capacity of their clients. While not intended for JPs the Handbook does give us in-depth knowledge of how complex is the legal process for determining capacity.

JPs do need to assess the decision making capacity of their clients when witnessing documents such as an Enduring Power of Attorney. The 6-page Executive Summary in the Handbook is worth reading. It is also interesting to note that Schedule 3 of the Handbook is the full text of the OPG fact sheet Guidelines for Witnessing Enduring Documents that JPs do use. I offer my summary of the executive summary.

The Handbook ‘seeks to provide Queensland lawyers with a sound conceptual framework for assessing whether a client [adult] has capacity to give legal instructions’ and, as importantly, what steps to take when capacity is in doubt. After reminding lawyers of their fundamental ethical duties the basic principles of law regarding capacity are listed:

  1. all adult persons are presumed to have capacity
  2. capacity is time-specific, domain-specific and decision-specific
  3. the capacity to make a decision must be distinguished from the content of the decision itself
  4. capacity should not be assessed solely on the basis of appearance, age, behaviour (including communication style), disability or impairment
  5. capacity may be increased with appropriate support
  6. substituted decision making is a last resort

Lawyers are reminded that when assessing capacity they are not making a determination that will be final and binding. The suggested process is:

  1. Identify the client
  2. Identify the particular decision the client is seeking to make and relevant legal test for capacity
  3. Consider if there is any reason to question whether the client has capacity
  4. Determine if a substituted decision maker has been formally appointed
  5. If warning signs of impaired capacity are present, and no substituted decision maker has been appointed, take steps to maximise the client’s capacity by: meeting with client in person and alone; focus on the client as an individual, consciously putting aside biases and assumptions based on age, mental health, intellectual impairments, emotional stress and eccentricities; establish client trust and confidence; adapt communication style to the client; ensure the presence of any necessary interpreters; ensure a quiet, well-lit, comfortable and familiar environment (maybe dressing down); considering if the time of day is suitable; and, seeking assistance of friends, family or caregivers, but only with client consent.
  6. Conduct a preliminary assessment asking whether the client: understands the facts and issues underlying the decision; has the ability to manipulate the information to make an informed decision; expresses consistent and stable desired outcomes, conclusions and decisions; and, is aware of their own abilities and limitations.
  7. If doubt persists consult a second lawyer

In all cases, thorough, comprehensive and contemporaneous file notes should be kept.

If capacity remains is doubt:

  1. Consider whether there is an EPA when the lawyer can seek instructions for an appointed attorney
  2. Seek the client’s consent to a formal assessment of capacity by a medical professional
  3. If the client refuses a formal assessment, consider whether a substituted decision maker can be appointed
  4. Cease to act if the client appears to have impaired capacity and a substituted decision maker cannot be appointed

A useful outline of this process appears in a flowchart (Figure 1 on page 9).

Having witnessed a couple of dozen Enduring Power of Attorney and Advanced Health Directives in the last few months I found this handbook of great help. I recommend at least the Executive Summary be read by all JPs who donate their time on a weekly basis in designated signing sites around Queensland.

This article first appeared in my JP Blog in November 2016.