Family Lawyers Sydney
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.