Capacity is decision specific and can fluctuate over time. A person who may have the mental capacity to make some decisions, such as purchasing groceries, may lack the mental capacity to make other decisions, such as entering a Contract for Sale of Land or making a Will.

It is a lawyer’s responsibility to take instructions only from those clients who have the capacity to instruct. Rule 8 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 says that a lawyer must follow a client’s lawful, proper and competent instructions. But it is not a lawyer’s role to carry out an expert mental assessment capacity. The lawyer instead should use basic questioning, observations and, where applicable, resources to look for warning signs and if present, refer a client to an expert for a cognitive capacity assessment.

For estate planning, some tips are:

  1. Get to know your client – using a client registration form (download available here) helps you understand key details about a client. You can provide the form to the client before your initial meeting so that during the meeting you can use the client’s details as an “ice breaker”.
  2. Test client instructions – you can use a guide such as our “guidelines about: what you have to know to make an appointment of attorney or guardian or executor” (download available here) also before the initial meeting to set the background for a client’s own values and preference. You can then repeat, rephrase, and summarise during your meeting to confirm consistency in their values and preference.
  3. Provide fact sheets which the client can use to recall information after your initial meeting. For visually or audio impaired or clients who are known to have some form of cognitive impairment, you could use easy-to-read fact sheets.

Taking the time to get to know your client and checking for consistency in their values and preference, helps a lawyer pick up any warning signs and in turn satisfy their professional obligation to follow lawful, proper and competent instructions.

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