These guidelines have been updated to reflect new medical treatment, voluntary assisted dying, and guardianship and administration laws in Victoria. They are to be used from 1 March 2020.
The Capacity Guidelines and Toolkit (the Toolkit) are designed to provide a practical overview for legal practitioners who may have concerns about their client’s capacity.
There is a basic common law presumption that every adult person has legal capacity to make their own decisions. However, in some cases, legal practitioners may find they have doubts about whether their client has the required level of legal capacity.
A person’s capacity may be affected by a number of factors including:
an intellectual disability;
mental illness;
a particular medical condition; and/or
an age-related cognitive disability, such as Alzheimer’s disease.
It is fundamental to the practitioner/client relationship that a practitioner relies and acts upon the instructions of their client. However, where a practitioner has doubts about a client’s capacity to give competent instructions, it is the practitioner’s responsibility to explore this issue further.
This Toolkit aims to help legal practitioners take a principled approach to this task that is thorough, thoughtful and respectful of each client’s particular circumstances. Practitioners who inform themselves of the issues surrounding client capacity and who are aware of the available resources in the area will be better equipped to face the challenges which often arise in this area of practice, while still providing a high standard of legal service to clients.
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