Assessing whether a person has decision making capacity
The Powers of Attorney Act 2014 says that a person is presumed to have decision making capacity unless there is evidence to the contrary.
A person has capacity to make a decision about a matter if they are able to
- understand the information relevant to the decision and the effect of the decision
- retain that information to the extent necessary to make the decision
- use or weigh that information as part of the process of making the decision and
- communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.
The Powers of Attorney Act says that someone who assesses whether a person has decision making capacity, must take reasonable steps to conduct the assessment at a time and in an environment in which the person’s decision making capacity can be assessed most accurately.
When determining whether a person has decision making capacity regard should be had to the following points.
Decision making capacity for some matters
A person may have decision making capacity for some matters and not others.
If a person does not have decision making capacity this may be temporary
If a person does not have decision making capacity for a matter, it may be temporary and not permanent.
It should not be assumed that a person does not have decision making capacity for a matter on the basis of the person’s appearance
It should not be assumed that a person does not have decision making capacity for a matter merely because the person makes a decision that is, in the opinion of others, unwise. However, if a person has made, or proposes to make, a decision that has a high risk of being seriously injurious to the person’s health or wellbeing, this (in conjunction with other factors) may be evidence that the person is unable to understand, use or weigh information relevant to the decision or the effect of the decision.
How information is provided
A person is taken to understand information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person’s circumstances, whether by using modified language, visual aids or other means.
Making a decision with support
A person has decision making capacity for a matter if it is possible for the person to make a decision in the matter with practicable and appropriate support. For example, using information or formats tailored to the particular needs of a person; assisting a person to communicate his or her decision; giving a person additional time and discussing the matter with the person; and using technology that alleviates the effects of a person’s disability.