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Capacity and decision making - the importance of planning for the future Capacity and the concept of losing capacity is not usually something that is well known until it happens to you or someone you love. Not being aware of the effects that loss of capacity can have on a person’s life can leave you unprepared and cause unnecessary emotional stress. Capacity refers to an individual’s rationality and their understanding of reality particularly with relation to understanding and making decisions and communicating this in some way. A person’s capacity can vary in different circumstances, they may demonstrate the capacity to make a decision in one situation, but not in another. As a result, capacity is assessed per each decision that needs to be made. Just because a person is assessed as not possessing the capacity to make a decision does not necessarily mean they do not have the capacity to make any decision. Capacity can be lost temporarily or it can be a permanent loss through conditions such as dementia, intellectual disability, brain damage or a psychiatric condition. If it is seen that a person’s capacity has been lost it should be assessed and confirmed by a general practitioner, psychiatrist or other specialist. Should a person lose their capacity and has not made the necessary arrangements this means that they do not have the option of choosing who makes their decisions for them. This is why planning ahead is incredibly important. If you have done the appropriate planning and at some point you lose your capacity you can rely on a decision that you may have made earlier, and the person you elected is able to make the necessary decisions for you. The legal term for the person you elect to make your decisions for you is known as an enduring power of attorney. If you lose your capacity and a power of attorney is not appointed you will need to use either assisted decision making or substitute decision making arrangements which means that you may risk having someone who does not necessarily fully understand your intentions making important decisions for you. It can be an emotional time when you experience yourself or a loved one no longer being able to make decisions. With the right forward planning in place this can help to minimise the emotional stresses of all those involved. At The Quinn Group we have a lot of experience with appointing Enduring Power of Attorneys as well as dealing with the Supreme Court or the Guardianship tribunal in order to appoint someone who can make decisions on a person’s behalf. For further information or advice regarding Capacity, Enduring Power of Attorney, assisted decision making and substitute decision making contact us on 1300 QUINNS or click here to submit an online enquiry. |
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Disclaimer: The contents of this document titled “The Quintessential Brief” (the ‘Material’) are provided as general information only. It is not intended to be given as advice and should not be relied upon as such. If you are concerned about any issue raised by the Material then you should seek your own professional advice. No warranty is given in relation to the accuracy, currency or completeness of the Material. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice. Where applicable, liability is limited by the NSW Solicitors Scheme under the Professional Standards Act 1994 (NSW), and other relevant state legislation. The Quinn Group respects your privacy. Should you not wish to receive this newsletter in the future please contact us on 1300 784 667.