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The term "capacity" refers to a client's ability to:
  • understand the facts involved in the decision-making and the main choices;
  • weigh up the consequences of those choices and understand how the consequences affect them; and
  • communicate their decision.
Capacity is fundamental to the client/lawyer relationship. Capacity is decision-specific and the presumption should be applied at each decision. However, it may be the case that the client has capacity to make some decisions, and not other decisions. A client's capacity can fluctuate over time and may depend on various things, including the time of day or the medication they are taking. If a client has a mental illness, their capacity may be impaired temporarily, or, if they suffer from a chronic mental illness, permanently. It does not follow that because a client suffers from a mental illness, s/he lacks capacity. The Law Society of New South Wales handbook "A Practical Guide for Solicitors: When a client’s capacity is in doubt" sets out a number of indicators of a lack of capacity or "red flags":
  • A client demonstrates difficulty with recall or has memory loss;
  • A client has ongoing difficulty with communications;
  • A client has problems with simple calculations which they did not have previously;
  • A client is disoriented;
  • There is a sense that “something about the client has changed”, including deterioration in personal presentation, mood or social withdrawal;
  • A client is in hospital or a residential aged care facility when instructions are taken;
  • A client has changed solicitors several times over a short period, particularly if there has been a change from a solicitor who has advised the client for many years;
  • A client is accompanied by many other friends, family or carers to interviews with the solicitor but is not given the chance to speak for themselves;
  • A client shows a lack of limited ability to interact with the solicitor; or
  • A client shows a limited ability to repeat advice to the solicitor and ask key questions about the issues.
Practitioners should consider whether it might be necessary to have a formal assessment of capacity by a professional and obtain their client's consent for that to occur. For further information, please contact Watts McCray Lawyers.
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