Capacity to make decisions

THE NSW DEPARTMENT OF ATTORNEY GENERAL & JUSTICE publishes the Capacity Toolkit, which is a guide to assessing one’s ability to make legal, medical, financial and personal decisions.

The ability to make their own decisions is known as “capacity”. If one is concerned of another’s capacity to make a decision for themselves, they must do a capacity assessment. Capacity assessments are often performed by family members, friends, carers, doctors, health care works, government workers, lawyers, bank managers or any person who provides services.

Capacity Assessment Principles are as follows:

  1. Start by assuming the person has capacity to make decisions.
  2. Capacity is decision specific. If one can’t make a decision about one thing they may still be able to make other decisions.
  3. Never assume a person lacks capacity because of appearances.
  4. Assess the person’s decision making capacity, not the decision they make.
  5. Respect a person’s privacy.
  6. Substitute-decision making is a last resort.

A person who is assessed as not being able to make a decision may need a “substitute decision maker”.

Disputes about capacity may be taken to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) of Level 3, 2a Rowntree Street, Balmain NSW 2041, tel 1800463928.

Further information can be found at the Aged Care Rights Service and NSW Government Diversity Services.

Lawyers

Sydney, Australia

1300 00 2088

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