Capacity Assessments

The notion of an individual’s ‘capacity’ to perform various functions is a legal issue, usually with important implications.

Where a Tribunal or Court decides that the individual is not competent to make decisions about relevant issues, assistance may be provided by the appointment of a substitute decision maker, such as a Guardian or a Financial Administrator.

The assessment of capacity involves a careful examination of the individual’s capacity to understand their circumstances and to make reasoned and informed decisions about the issue in question. Even when individuals pursue a decision that appears to be unwise, if they understand the risks and potential consequences of that decision then they are generally considered to have the capacity to decide for themselves. It is up to a Court to decide the competency of the individual and any need for the appointment of a substitute decision maker.

Areas in which questions of capacity commonly arise:

  • Decisions about lifestyle or financial matters

  • Capacity to make Enduring Powers of Attorney or to appoint a Medical Treatment Decision Maker

  • Testamentary Capacity

  • Capacity to carry out the role of parent

  • Capacity to participate effectively in legal proceedings

Decision making about lifestyle or financial matters

Referrals are made for neuropsychological assessment to evaluate an individual’s ability to make competent decisions about financial, legal or health issues. These referrals are frequently made due to concerns about an individual’s safety.

Where the neuropsychologist finds that the individual has significantly impaired understanding and insight in these areas, it may be appropriate for the matter to be referred to VCAT* for determination of the current need for Guardianship and/or Administration. The neuropsychology report is then used as evidence supporting the VCAT application.

*Victorian Civil and Administrative Tribunal, or relevant tribunal in other Australian states and territories.

Capacity to make Enduring Powers of Attorney or to appoint a Medical Treatment Decision Maker

It is assumed that adults have the capacity to make an Enduring Power of Attorney and to appoint a Medical Treatment Decision Maker. These appointments carry risk and, if there is evidence that the adult may not understand the nature and effect of the appointment, they may be referred for neuropsychological assessment of capacity to make such appointments.

Testamentary Capacity

There is a legal presumption that individuals have capacity to make a Will. However, where there are questions about an individual’s ability to meet established legal criteria for testamentary capacity, that person may be referred for neuropsychological assessment. We will make a careful examination of the individual’s understanding as well as general cognitive abilities, including memory and insight. Where neuropsychology assessment confirms the individual’s testamentary capacity, the report may be stored with the Will for use in the event of any potential claim.

Parenting capacity

We have a extensive experience in performing assessments of parenting capacity for individuals involved in Child Protection matters or in family law proceedings. Detailed reports are prepared that carefully document current psychological and cognitive functioning in the context of past history and immediate circumstances. Recommendations are made for management of risk, and for any supports needed to enable optimal parenting function.

Need for support around legal process

Individuals before the Courts for criminal or civil proceedings may need assistance to understand legal process and instruct their legal representatives. This sometimes takes the form of a litigation guardian.

We conduct comprehensive assessments to determine the extent of understanding the individual holds about their case, and their capacity to instruct their legal representatives or to understand advice.

Mental impairment

Individuals involved in criminal proceedings may be referred for assessment of mental impairment. We provide comprehensive assessments and reports to describe the presence, nature and impact of cognitive impairment on offending and sentencing.

Return to work/study

A neuropsychology assessment provides reliable information regarding an individual’s capacity for work or study. We will also provide information about the potential for recovery following acquired brain injury and recommendations regarding necessary support for optimal outcomes.