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Guidelines for assessing decision–making capacity

New Queensland Capacity Assessment Guidelines 2020 (capacity guidelines) will be effective from 30 November 2020.

The capacity guidelines provide general information about capacity, capacity assessment and the legal tests of capacity in Queensland. They are relevant for Queensland’s guardianship legislation (the Guardianship and Administration Act 2000 and Powers of Attorney Act 1998).

The guidelines include:

  • principles to apply when carrying out a capacity assessment
  • details on the legal tests that apply to capacity for making
    • decisions about personal, health and financial matters (see p. 20 for a printable checklist)
    • an advance health directive or enduring power of attorney (see pp. 44–5 for printable checklists)
  • checklists to use for conducting a capacity assessment
  • helpful information, hint, tips, examples and practical guidance for making capacity assessments.

The capacity guidelines have been prepared by the Attorney-General and Minister for Justice as required under section 250 of the Guardianship and Administration Act 2000 (which commences on 30 November 2020).

Capacity

Capacity is a legal term referring to the ability to exercise the decision-making process.

Capacity is specific to the type of decision to be made and when the decision must be made. It can change or fluctuate and can be influenced by the complexity of the decision, support available to the person and the time the decision is made.

An adult with capacity has the right to make legally recognised decisions about their life, such as healthcare choices, support services they may need, where they live and how they manage their finances.

If an adult has impaired capacity for making a particular decision, someone else (a substitute decision-maker) might be needed to make the decision for them.

Capacity principles

The guidelines provide 5 principles to apply when assessing an adult’s capacity (see p. 9):

  • Always presume an adult has capacity.
  • Capacity is decision and time specific.
  • Provide the adult with the support and information they need to make and communicate decisions.
  • Assess the adult’s decision-making ability rather than the decision they made.
  • Respect the adult’s dignity and privacy.

Capacity assessment checklist

The guidelines contain a printable capacity assessment checklist about the 6 steps to follow when conducting a capacity assessment (see p. 21):

  1. Identify the decision to be made.
  2. Identify a need to assess capacity.
  3. Apply the right legal test of capacity.
  4. Prepare for the assessment.
  5. Conduct the assessment.
  6. Document your conclusion and reasons.

Who should use the guidelines

Many different people may be required to carry out or seek an assessment of an adult’s capacity to make a decision.

This could include a:

  • family member, friend or colleague
  • health professional
  • social worker, support worker or advocate
  • person who works in the law, including an attorney or a Justice of the Peace
  • worker in a financial institution
  • Aged Care Assessment Team (ACAT) worker.

Section 6 of the capacity guidelines relates to assessing the capacity of a person to make enduring powers of attorney and advance health directives and is specifically relevant to:

  • Justices of the Peace
  • Commissioners for Declarations
  • lawyers
  • notary publics
  • doctors.

When the capacity guidelines should be used

There are many reasons why a capacity assessment may be needed, such as:

  • deciding if an adult can consent to medical treatment
  • deciding if an adult needs more support with making decisions
  • providing evidence to the Queensland Civil and Administrative Tribunal (QCAT) or supreme court about an adult’s capacity
  • deciding whether to apply to QCAT for appointment of a guardian or an administrator
  • deciding if an attorney’s power under an enduring power of attorney has commenced.

Access the guidelines

Learn more about the changes to the law