Capacity is a fickle thing which Solicitors and other professionals are required to assess before a person can make certain decisions for themselves.
There are many factors which can affect ones decision making capacity; including a number of medical conditions, disability, age, and level of education.
Under Australian Law there is a presumption that an adult has their own decision making capacity.
In addition to this, there are some documents where a specific test for capacity is required. These documents usually require that a person specifically understand the nature and effect of the documents that they are signing.
Generally, this means that a person must be able to:
• Understand the facts and the choices involved with the decision;
• Weigh up the consequences and potential ramifications of the decision;
• Make a decision free from the influence of family and without coercion; and
• Communicate their decision clearly.
Remember, just because a person makes a decision that you don’t agree with, does not mean that the lacked the capacity to make that decision!
A person must have the capacity to make the decision at the time that the decision is made or effect is being given to the decision. For example a person must have capacity at the time of signing a legal document.
It is important that you think about your future while you have the capacity to do so. This might include planning for the event that you do lose the capacity to make your own decisions.
Documents such as a Power of Attorney and Appointment of Enduring Guardian can be drafted where you nominate someone to make decisions on your behalf, in the event of a loss of capacity. Unfortunately, once you lose capacity it is too late to put these documents in place.
If you wish to ascertain if you or a loved one could make a legal document or have questions about what happens after a person loses capacity please contact our office because at Everingham Solomons Helping You is Our Business.
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