Queensland Handbook For Practitioners On Legal Capacity

Queensland Handbook
for Practitioners on
Legal Capacity
Acknowledgements
This Handbook for Practitioners on Legal Capacity (the Handbook) has been prepared by
Allens and Queensland Advocacy Incorporated, with the contribution of:
(a) University of Queensland law students via the UQ Pro Bono Centre;
(b) solicitors from the Queensland Law Society’s Ethics Centre;
(c) guidelines prepared by the Office of the Public Guardian;
(d) the Honourable Justice David Thomas and Senior Member Clare Endicott of the
Queensland Civil and Administrative Tribunal; and
(e) solicitors from community legal centres and statutory and other bodies who
participated in the roundtable discussion regarding capacity issues held on 20
March 2014.
We thank all of these contributors for their efforts.
Queensland Advocacy Incorporated’s services are provided with funds invested by the
Queensland Government from the State Budget and Legal Practitioner Interest on Trust
Accounts Fund.
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Contents
1 Executive Summary 6
1.1 What is the purpose of this Handbook? 6
1.2 Australian Law Reform Commission report on barriers
to legal capacity 6
1.3 Summary of steps for assessing capacity 7
1.4 Fundamentals of lawyers and capacity
(Chapters 3 and 4) 7
1.5 Practical process for assessing client capacity
(Chapter 5) 8
1.6 Where client has capacity
(the presumption of capacity is not rebutted) (Chapter 6) 10
1.7 Where capacity remains in doubt (Chapter 7) 11
2 Introduction 12
2.1 What is legal capacity? 12
2.2 Why is legal capacity important? 12
3 Ethical Duties and Guiding Principles 14

3.1 Ethical duties relevant to capacity 14
3.2 Consequences of failure to comply with the
ethical duties 17
3.3 The role of the lawyer 17
4 Basic Principles of Legal Capacity 19

4.1 Presumption of capacity 19
4.2 Capacity is time-specific 19

4.3 Capacity is domain-specific 20
4.4 Capacity is decision-specific 20
4.5 Capacity to decide must be distinguished
from the decision itself 20
4.6 No assumption of incapacity due to appearance,
age, behaviour or disability 21
4.7 Capacity may be increased with appropriate support 22
4.8 Substituted decision making is a last resort 22
5 Practical Matters to Consider in Taking Instructions 24

5.1 Who is my client and what is the decision to be made? 24
5.2 Is there a reason to question my client’s capacity? 26
5.3 What can I do to maximise my client’s capacity? 27
5.4 How do I assess my client’s capacity? 33
5.5 What records of capacity assessment should I keep? 34
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6 What do I do if I Determine My Client has Capacity? 37
7 What do I do if I Determine My Client does not have
Capacity or has Questionable Capacity? 39
7.1 Actions NOT open to lawyers 39
7.2 Has a substituted decision maker been formally
appointed by or for the client? 40
7.3 Will the client consent to a formal assessment
of capacity by a medical professional? 43
7.4 Can a substituted decision maker be appointed? 46
7.5 Ethical complexities for lawyers seeking to have
a substituted decision maker appointed to their client 48
7.6 Should I cease to act? 53
8 Who Pays the Costs of Maximising and Assessing Capacity? 54

9 Where Can I Obtain Further Guidance? 56
Schedule 1 57
Indicia of Impaired Capacity 57
Schedule 2 59
Capacity Tests Applicable to Different Practice Areas 59
Schedule 3 76
Office of the Public Guardian Guidelines 76
Schedule 4 83
Referral Letter to Medical Professional 83
Schedule 5 85
Bibliography 85
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Endorsement
The Queensland Law Society endorses this Handbook for use by Queensland
solicitors.
Definitions and Interpretation

Unless the context otherwise requires, in this Handbook any reference to:
(a) capacity is a reference to legal capacity;

(b) diminished capacity, impaired capacity, lacking capacity or any similar
expression is a reference to diminished capacity, impaired capacity or
a lack of capacity for that particular decision at that particular time (as
capacity is domain-specific, decision-specific and time-specific);
(c) lawyer is a reference to both barristers and solicitors who are admitted to
practise in Queensland (however, the terms ‘barrister’ and ‘solicitor’ are
used in some cases where it has been necessary to distinguish between
the two);
(d) QLS is a reference to the Queensland Law Society;
(e) substituted decision maker, unless otherwise specified, is a reference
to a person appointed under an enduring power of attorney, appointed
as a guardian or administrator under the Guardianship and
Administration Act 2000 (Qld), or a litigation guardian; and
(f) Tribunal is a reference to the Queensland Civil and Administrative
Tribunal.
Disclaimer
This Handbook is provided for your information and interest only. It does not
constitute and must not be relied on as legal advice. You must seek specific
advice tailored to your circumstances.
This Handbook is dated 1 July 2014. It is based on the law of Queensland

and the Commonwealth of Australia relevant to legal capacity as in force on
1 July 2014. Neither Allens nor Queensland Advocacy Incorporated undertake
any obligation to update this Handbook for any changes in relevant laws,
guidelines or practice on or after the date of this Handbook.
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1 Executive Summary
1.1 What is the purpose of this Handbook?

This Handbook seeks to provide Queensland lawyers with a sound
conceptual framework for assessing whether a client has capacity to
give legal instructions. It also details the various steps lawyers can
take when their client’s capacity is in doubt. The Handbook covers
issues of capacity relevant to elderly clients and clients with mental
illness, intellectual disability, cognitive impairment and acquired
brain injury. The Handbook does not cover issues of capacity relevant
to minors.
Underpinning the development of the Handbook is the belief that

if lawyers better understand issues of capacity, and are presented
with specific steps to undertake in certain circumstances where the
capacity of a client seems likely to be called into question, there will
be fewer instances in which lawyers refuse to act out of fear that
the client lacks capacity. In this way, the Handbook will contribute to
ensuring that the most vulnerable members of our society are still
able to access legal advice and representation.
1.2 Australian Law Reform Commission report

on barriers to legal capacity
The Australian Law Reform Commission is currently preparing a
report to be released in August 2014 on Commonwealth laws and
legal frameworks that ‘deny or diminish the equal recognition of
people with disability as persons before the law and their ability
to exercise legal capacity’, which will include recommendations on
changes that could be made to such laws and frameworks.1 As the
law and best practice on issues of capacity are constantly changing,
it is recommended that lawyers obtain a copy of the report, once
released, to ensure they are aware of the latest developments in this
rapidly evolving area.
1 Australian Law Report Commission, Equality, Capacity and Disability in Commonwealth

Laws, Issues Paper No 44 (November 2013) 3 <http://www.alrc.gov.au/sites/default/files/
pdfs/publications/whole_ip_44.pdf>.
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1.3 Summary of steps for assessing capacity
What follows is a summary of Chapters 3 to 7, which outline the steps a lawyer
should take to assess whether their client has capacity to make a particular
decision and provide competent instructions in relation to it. Lawyers may find it
useful to refer to Figure 1 (two pages below) which provides a flowchart of this
process.
1.4 Fundamentals of lawyers and capacity

(Chapters 3 and 4)
At all times when assessing whether a client has capacity to provide competent
instructions in relation to a particular decision, lawyers should remain cognisant
of the following fundamental ethical duties that are relevant to capacity:
(a) the duty to follow lawful, competent and proper instructions;

(b) the paramount duty to the court and administration of justice;
(c) the duty to act in the client’s best interests (including to respect client
autonomy);
(d) the duty to be honest and courteous in all dealings;
(e) the duty not to engage in conduct which constitutes discrimination; and
(f) the duty of confidence to the client.
Lawyers should also bear in mind the following basic principles of law regarding
capacity:
(a) all adult persons are presumed to have capacity to make all decisions
unless there is evidence to rebut the presumption;
(b) capacity is time-specific, domain-specific and decision-specific, meaning
at a given time a client may have capacity for some decisions but not
others;
(c) the capacity to make a decision must be distinguished from the content
of the decision itself, meaning ‘bad’ decisions are not indicative of
impaired capacity;
(d) capacity should not be assessed solely on the basis of appearance, age,
behaviour (including communication style), disability or impairment;
(e) capacity may be increased with appropriate support; and
(f) substituted decision making is a last resort.
Finally, lawyers must remember that when assessing a client’s capacity they
are not making a determination of the client’s capacity that will be final and
binding on the client or any relevant third parties. Determining whether the
client has capacity to perform particular tasks is ultimately a matter for the
courts.
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1.5 Practical process for assessing client capacity
(Chapter 5)
It is imperative that lawyers recognise that every client is unique. It follows that
the approach a lawyer takes in dealing with issues associated with a client’s
capacity may need to be tailored to the client’s individual circumstances.
Recognising this, what follows is a general conceptual framework on how to
assess capacity and deal with capacity issues in practice.
(a) Identify the client. In most cases, the client will be the person seeking
to make the decision. Where a substituted decision maker has been
appointed to or by the client, it may be the substituted decision maker
and not the client who has the exclusive ability to provide the lawyer with
instructions. In some cases, the substituted decision maker may be the
lawyer’s client. In all cases, the lawyer cannot accept instructions from
third parties such as family, friends and carers.
(b) Identify the particular decision the client is seeking to make and the
relevant legal test for capacity that applies to that decision. The specific
legal tests for different types of decisions are listed in Schedule 2.
(c) Consider whether there is any reason to question whether the client
has capacity. Various ‘red flag’ circumstances that could (but do not
necessarily) indicate that a client lacks capacity are listed in Schedule 1.
If there are no ‘red flags’ and the client displays no indicia of impaired
capacity, the lawyer can act on the client’s instructions.
(d) Determine whether a substituted decision maker has been formally
appointed for the client (such as a guardian or administrator, or litigation
guardian). Review the terms of the document effecting any such
appointment to ensure the appointment is still in force and the decision
to be made falls within its scope. If so, instructions must be taken from
the substituted decision maker.
(e) If ‘red flags’ or indicia of impaired capacity are present and no substituted
decision maker has been appointed, take steps to maximise the client’s
capacity. What steps are appropriate will invariably depend on the
particular client, but in general the following steps are recommended:
(i) meet with client in person and alone;
(ii) focus on the client as an individual and consciously put to one side
biases and assumptions based on age, mental health, intellectual
impairments, emotional distress or eccentricities;
8
Identify the client and the decision to be made
NO Does the client

exhibit any indicia of
impaired capacity?
YES
Has a guardian or Is the appointment

administrator been YES still in force and is YES
appointed for the the decision within
client? the scope of the
NO appointment?
NO
Take steps to
maximise the client’s
capacity and then
conduct a preliminary
assessment of
capacity Lawyer can
act for client
Lawyer and take
can act on Does the preliminary Does the client have instructions
the client’s assessment indicate NO a validly executed YES from the
instructions the client has enduring power of substituted
capacity? attorney? decision
maker
NO
Will the client

Can a substituted
consent to a formal NO YES
decision maker be
assessment of
appointed to the
capacity by a medical
client?
professional?
YES NO
Does the medical

YES professional’s report,
Lawyer must
when considered NO
consider whether
along with all of
to cease to act
the other available
for the client
evidence, indicate the
client has capacity?
Figure 1: Diagram showing step-by-step general conceptual framework for

lawyers to assess client capacity and deal with capacity-related issues in
practice.
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(iii) establish the client’s trust and confidence by emphasising the
duties that the lawyer owes to the client, in particular the duties of
loyalty and confidence;
(iv) adapt your communication style to the client (deal with simple
issues first, take breaks, allow the client time to think, ask open-
ended questions, provide memory cues and explain matters
exhaustively);
(v) ensure any necessary interpreters, non-verbal communication
tools, visual and auditory aids are available for the client to use;
(vi) ensure the meeting environment is quiet, well-lit, comfortable and
familiar to the client (the lawyer may consider ‘dressing down’);
(vii) consider the timing of decision making (eg, a morning
appointment may better suit the client) and whether gradual
decision making (over a series of meetings) or delayed decision
making (to a time when the client is lucid) would increase
capacity; and
(viii) seek the assistance of third parties such as friends, family or
caregivers but only with the prior consent of the client.
(f) Once the client’s capacity has been maximised, conduct a preliminary
assessment of the client’s capacity having regard to the relevant legal test
to be applied (see Schedule 2). This will usually involve asking the client
questions (tailored to their circumstances) that seek to establish whether
the client:
(i) understands the facts and issues underlying the decision, the
different options available to them (including making no decision)
and the consequences and implications of those options for the
client and others;
(ii) has the ability to manipulate that information to make an
informed decision and can articulate a reasoning process behind
the conclusions and decisions they make;
(iii) expresses consistent and stable desired outcomes, conclusions
and decisions; and
(iv) is aware of their own abilities and limitations.
(g) In instances of doubt, it may be useful to have a second lawyer attend the
preliminary assessment. In all cases, lawyers should maintain thorough,
comprehensive and contemporaneous file notes of any consultation with
the client and relevant interactions with third parties (such as medical
professionals and information volunteered by third parties).
1.6 Where client has capacity (the presumption of

capacity is not rebutted) (Chapter 6)
If the preliminary assessment reveals that the client does have capacity, record
the reasons for this and then proceed to act on the client’s instructions. Canvas
the possibility of putting in place arrangements to deal with any future loss of
capacity by the client.
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1.7 Where capacity remains in doubt (Chapter 7)
(a) Consider whether there is an enduring power of attorney under which
the lawyer can take instructions from the attorney appointed. Errors on
the face of an enduring power of attorney or improper execution would
warrant further and more detailed investigations.
(b) If no substituted decision maker has been formally appointed, seek the
client’s consent to undergo a formal assessment of capacity by a medical
professional. There can be no assessment without the client’s consent;
lawyers do not have the power to force a client to undergo a formal
assessment. If the assessment, when considered along with all the other
available evidence, indicates the client has capacity, the lawyer may
proceed to act on the client’s instructions.
(c) If the client refuses to consent to a formal assessment, or the assessment
does not indicate that the client has capacity, consider whether
a substituted decision maker can be appointed to the client. It is
preferable if the client, a family member, friend, social worker or health
care professional makes the application to the Tribunal or court. In a
very narrow set of circumstances, it may be that lawyers can make the
application provided that they meet the relevant standing requirements
and take the steps required by the courts to ensure that they do not
breach their ethical obligations.
(d) Only if the client has impaired capacity for the matter and a substituted
decision maker cannot be appointed should the lawyer consider ceasing
to act. Lawyers should always remember that capacity is time-specific
so it may be likely that the client could recover capacity at some point in
the future. If the lawyer does decide to cease to act, they must give the
client reasonable notice and it is recommended that they provide the
client with a letter setting out their reasons for ceasing to act, the direct
and indirect consequences for the client and the options and support
available to the client (both legal and non-legal).
(e) In cases of doubt, solicitors can obtain guidance from the QLS Ethics
Centre.
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2 Introduction
2.1 What is legal capacity?

Legal capacity is, at the highest level of abstraction, the ability of a
person to make decisions for themselves and deal with their legal
affairs. Generally, the requirements of capacity for an adult include
understanding the nature and effect of decisions about the matter,
freely and voluntarily making decisions about the matter, and
communicating the decisions in some way.2 An adult is presumed to
have capacity for a matter unless it can be shown otherwise.
2.2 Why is legal capacity important?

Clients must have capacity to give lawful, competent and proper
instructions to lawyers. Lawyers have legal and ethical duties to ensure
that they do not accept instructions from a client who lacks capacity.
Further, whether or not a client had or has capacity to make a particular
decision may impact upon the legal outcome of a case. For instance, a
person who is not fit to stand trial for a criminal offence may be eligible
to have their matter stayed.3 Alternatively, a contract entered into by a
person with impaired capacity may be void or voidable (with significant
consequences for counterparties and third parties).4
Importantly, capacity is domain-specific, decision-specific and time-
specific and the relevant test to apply in determining whether a
client has capacity depends on the particular decision the client is
attempting to make. Conditions that impair a client’s capacity may
also vary in severity and over time:
When the statutory definition of ‘disability’ is considered (intellectual
impairment, mental disorder, brain injury, physical disability or dementia:
section 3(1) [of the Guardianship and Administration Act 1986 (Vic)]), it can
be recognised immediately that disability can be mild, moderate or severe. So
too can the impact of the disability on a person’s cognitive or decision-making
capacity be mild, moderate or severe.... When it is also considered that the
person’s condition can be static, progressive, fluctuating or improving it will be
obvious that, as the legislation requires, an administration order should never
be made ‘once and for all’ but should be reassessed later on.5
2 See, eg, Guardianship and Administration Act 2000 (Qld) sch 4 (Dictionary); Powers of
Attorney Act 1998 (Qld) sch 3 (Dictionary).
3 See, eg, Mental Health Act 2000 (Qld) ss 280-83.
4 See, eg, Bergmann v Dengiz [2010] QDC 18 (10 February 2010) [15]-[16].
5 XYZ (Guardianship) [2007] VCAT 1196 (29 June 2007) [48]-[49] (Billings DP) (emphasis
12
added).
This necessarily means that whether a client has capacity can be a complex
issue. As Lord Cranworth LC famously put it in Boyse v Rossborough:
But between such an extreme case [of ‘a raving mad man’] and that of a man of perfectly
sound and vigorous understanding, there is every shade of intellect, every degree of
mental capacity. There is no possibility of mistaking midnight for noon; but at what
precise moment twilight becomes darkness is hard to determine.6
Given this complexity, it is imperative that lawyers have a strong framework for
assessing whether a client has capacity. Not only does the application of such a
framework fulfil the lawyer’s duties, but it also gives the client the best chance
of retaining control over decisions that affect them:
Capacity is a complex issue and requires careful consideration and balancing when
making decisions about how to proceed. There is a risk that a person’s right to make
their own decisions will be interfered with inappropriately or excessively. There is a
countervailing danger that failure to take action to protect a client might leave them
exposed to physical or financial harm or abuse. In addition, any course of action that
interferes with a person’s decision-making autonomy, whether for good or ill, risks
damaging the relationship between solicitor and client. It is important that solicitors
assisting these clients have the tools necessary to enable them do the job and are
not discouraged from assisting the most vulnerable of clients by the ethical and legal
framework in which they must operate.7
Unfortunately, the combination of the strict legal and ethical duties imposed
on lawyers and the inherently complex ‘medico-legal’8 nature of capacity
encourages lawyers to abdicate responsibility for assessing capacity and to
refuse to take instructions where any indicia of impaired capacity are present:
Lacking training in capacity assessment or other aspects of mental health, the average
practitioner may argue that, as lawyers, we do not and should not perform capacity
assessments. Instead, we should refer cases of questionable capacity to mental health
professionals. The assertion is true as far as it goes, but it only goes so far. To decide
whether a formal assessment is needed, the lawyer is already exercising judgment about
the client’s capacity on an informal or preliminary level. The exercise of judgment, even if
it is merely the incipient awareness that “something is not right,” is itself an assessment.
It is better to have a sound conceptual foundation and consistent procedure for making
this preliminary assessment than to rely solely on ad hoc conjecture or intuition.9
6 (1857) 10 ER 1192, 1210.

7 Andrew Taylor, ‘Representing Clients with Diminished Capacity’ (2010) 48 (February) Law Society Journal
56, 56.
8 Nick O’Neill and Carmelle Peisah, Capacity and the Law (Sydney University Press and the Australian Legal
Information Institute, 2011) 1.
9 Charles Sabatino, ‘Representing a Client with Diminished Capacity: How Do You Know It And What Do
You Do About It?’ (2000) 16 Journal of the American Academy of Matrimonial Lawyers 481, 483.
13
3 Ethical Duties and Guiding
Principles
3.1 Ethical duties relevant to capacity

(a) Duty to follow lawful, competent and proper instructions
Rule 8.1 of the Australian Solicitors Conduct Rules states that,
‘[a] solicitor must follow a client’s lawful, proper and competent
instructions.’10 The 2011 Barristers’ Rules, in comparison, while
containing a similar ethical duty to that in the Australian
Solicitors Conduct Rules, is phrased slightly differently:
A barrister must seek to assist the client to understand the issues in
the case and the client’s possible rights and obligations, sufficiently
to permit the client to give proper instructions, including instructions
in connection with any compromise of the case.11
Clearly there is a connection between a client being able to
‘understand the issues’ and their capacity, just as the ability
to ‘give proper instructions’ is analogous to the ability to
give ‘competent’ instructions (as required by the Australian
Solicitors Conduct Rules). Thus for all lawyers, the ability to
assess and determine whether a client has capacity – and
knowing what steps to take should that capacity be in doubt –
are vital parts of legal practice.
(b) Paramount duty to the court and administration of justice
Rule 3 of the Australian Solicitors Conduct Rules provides that
‘[a] solicitor’s duty to the court and the administration of justice
is paramount and prevails to the extent of inconsistency with
any other duty.’12 Similarly, rule 25 of the 2011 Barristers’ Rules
provides that ‘[a] barrister has an overriding duty to the Court
to act with independence in the interests of the administration
of justice.’13 The relevance of capacity to a lawyer’s duty to the
court was stated explicitly by Bell J in Goddard Elliott (a firm) v
Fritsch in relation to litigation:14
10 Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012) r 8.1; Legal
Profession (Australian Solicitors Conduct Rules) Notice 2012 (Qld).
11 Bar Association of Queensland, Barristers’ Conduct Rules (at 23 December 2011) r 39; Legal
Profession (Barristers Rules) Notice 2011 (Qld).
12 Queensland Law Society Law Society, Australian Solicitors Conduct Rules (at 1 June 2012) r
3.1; Legal Profession (Australian Solicitors Conduct Rules) Notice 2012 (Qld).
13 Bar Association of Queensland, Barristers’ Conduct Rules (at 23 December 2011) r 25; Legal
Profession (Barristers Rules) Notice 2011 (Qld).
14 [2012] VSC 87 (16 March 2012) [548]-[549], quoting Borchert v Terry [2009] WASC 322 (6
November 2009) [69] (Kenneth Martin J). 14
The commencement of proceedings on behalf of a client implies the solicitor, as
an officer of the court, is reasonably satisfied the client has that capacity. It is the
same when a barrister represents a client at court. In most cases, there will be
nothing suggesting the matter should be considered and the lawyer can presume
their client has mental capacity. In others, however, the lawyer will be on notice
that the issue requires active consideration…. The mental capacity of a client to
instruct is a reflection of that mental capacity which the client must have to
participate in the legal proceeding. As a lawyer is an officer of the court, it is their
‘primary responsibility’ to be reasonably satisfied that the client has the mental
capacity to participate in the proceeding and to instruct.
This statement was quoted with approval by Dixon J in Pistorino v Connell,

where his Honour noted that as officers of the court, ‘legal practitioners
have a clear and unambiguous duty to raise with the court the issue of
[their client’s] capacity to conduct … litigation’ so as to discharge ‘their
fundamental obligation, their duty to the court.’15 His Honour’s reasons
also implied that the duty to the court may require a lawyer to have
regard to the interests of other affected parties.
(c) Duty to act in client’s best interests (including to respect client autonomy)
One of the fundamental ethical duties of lawyers is their duty to each of
their clients. Rule 4.1.1 of the Australian Solicitors Conduct Rules provides
that ‘[a] solicitor must ... act in the best interests of a client’.16 Similarly, the
2011 Barristers’ Rules provide that ‘[a] barrister must promote and protect
fearlessly and by all proper and lawful means the client’s best interests.’ 17
In so far as it does not conflict with a lawyer’s paramount duty to the

court – which includes strict adherence to time limits and rules relating
to diligent maintenance and prosecution of a case – the lawyer is obliged
as an inherent part of their duty to the client to allow that client to
make their own decisions. This will necessarily be done on the basis of
the lawyer’s advice, but it is important that the lawyer’s decision is not
substituted for that of the client in the interests of ‘efficiency’.
Senior Member Clare Endicott, who has oversight of the Human Rights
Division of the Tribunal, has made it clear that although it may be
tempting, it is inappropriate for a lawyer to assume responsibility for a
variety of smaller decisions which the client may take slightly longer to
complete:
Capacity should be assessed for the level of complexity of the matters about
which a decision has to be made always with the principle in mind that a person
who is capable of making simple decisions for themselves should not be denied the
right to make those decisions. 18
Therefore, while it may at times seem more efficient for the lawyer to
‘speed up’ the decision making process by prompting a particular decision
on the part of the client, this is in reality a highly inappropriate response.
15 [2012] VSC 438 (25 September 2012) [4], [6].

16 Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012) r 4.1.1; Legal Profession
(Australian Solicitors Conduct Rules) Notice 2012 (Qld).
17 Bar Association of Queensland, Barristers’ Conduct Rules (at 23 December 2011) r 37; Legal Profession
(Barristers Rules) Notice 2011 (Qld).
18 Clare Endicott, ‘Client Capacity and Professional Standards’ (Paper presented at Queensland Law
Society Elder Law Conference, 17 July 2009) 3 <http://ethics.qls.com.au/sites/all/files/Client%20
Capacity%20&%20Professional%20Standards%20-%20Clare%20Endicott%20QLS%20Elder%20Law%20
Conference%202009.pdf>. Ms Endicott was also the former Deputy President of the Guardianship and
Administration Tribunal. 15
(d) Special duties in respect of clients with disabilities or impairments
Clients with disabilities or impairments may require a greater degree
of assistance with some aspects of their matter than persons without
disabilities or impairments. It is important that lawyers keep uppermost
in their minds the ethical duty to provide equality of treatment to all
clients. In addition to the general ethical duty to ‘be honest and courteous
in all dealings’ with such a client,19 solicitors also have a specific ethical
duty not to engage in conduct which constitutes discrimination,
which may require the solicitor to take positive steps to reasonably
accommodate the client’s disability and maximise the client’s capacity.20
This is particularly the case in light of the obligations imposed on
Australia by the Convention on the Rights of Persons with Disabilities.21
As Jonathan Wells QC has written:22
People with disabilities – especially the mentally ill or disabled – are often
patronised, ignored, unheard and dishonoured. Our commitment as lawyers is
to honour unconditionally their ‘inalienable preciousness’ as human beings; to
pay attention to them, helping to overcome their invisibility in the community; to
listen to them, and to hear them.
(e) Duty of confidence

Rule 9.1 of the Australian Solicitors Conduct Rules mandates that a lawyer
‘must not disclose any information which is confidential to a client and
acquired by the solicitor during the client’s engagement’23 except to other
lawyers engaged in the case and employees of the legal practice. This is
a strict duty that is owed to the client. Only the client can consent to the
disclosure of confidential information. It means that it is necessary for a
lawyer to obtain the client’s consent before discussing any matter related
to that client’s capacity with a medical professional.24
This duty does not prevent lawyers from making generic health-related
enquiries of family, friends or carers (for example, enquiring about the
best time of day to seek instructions from a client if he or she is elderly
or questioning whether the client has recently changed medication)
provided the lawyer does not divulge confidential information not
already known by the third party (specifically, a discussion of the
lawyer’s concerns regarding the client’s capacity). More importantly, the
information obtained by such enquiries is pertinent to the lawyer-client
20 Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012) r 42.1.1. Steps lawyers can
take to maximise a client’s capacity are discussed in further detail at Chapter 5.3 below.
21 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS
3 (entered into force 3 May 2008) arts 3(a), 12(2). Article 3(a) provides that a general principle of the
Convention is ‘[r]espect for inherent dignity, individual autonomy including the freedom to make one’s
own choices, and independence of persons’, while article 12(2) obliges Australia to ‘recognize that
persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.’
22 Jonathan Wells, ‘Lawyers’ doubts about client capacity: an ethical framework’ (2014) 36(5) Law Society
Bulletin (South Australia) 38, 39.
23 Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012) r 9.1; Legal Profession
24 Cf Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012) r 9.2.3, which provides
an exception allowing disclosure by a solicitor in a confidential setting for the sole purpose of obtaining
advice in connection with the solicitor’s legal or ethical obligations. In some circumstances, it may be
arguable that this exception would apply in relation to any enquiries relating to a client’s capacity made
of a doctor in his or her professional capacity, given that doctor also owes general duties of confidence.
16
relationship. However, lawyers should always be cognisant of the fact
that the third party’s interests and wishes may not be exactly the same as
those of the client, to whom the duty is always owed.
3.2 Consequences of failure to comply with the

ethical duties
Failure to comply with these ethical duties may produce various consequences,
in particular where a lawyer continues to act on the instructions of a client who
lacks capacity when that lawyer knows (or should have known) of that lack of
capacity. Failure to comply with the Australian Solicitors Conduct Rules or the
2011 Barristers’ Rules may amount to professional misconduct or unsatisfactory
professional conduct,25 rendering the lawyer liable to professional discipline.26
In addition, the lawyer may have costs awarded against them on an indemnity
basis27 and the further conduct of that matter by the lawyer is likely to be
stayed.28 Aside from the possibility of legal sanctions, there are also practical
consequences which flow from the lawyer failing to comply with their ethical
duties and deal with issues of capacity as soon as they arise. These include:
(a) increased costs to the client and any relevant counterparties;

(b) increased emotional strain on the client and their family and friends; and
(c) unnecessary matters that are not in the interests of justice going
before the Tribunal or the courts leading to an increase in the cost of
administering justice.
3.3 The role of the lawyer

Unlike in the United States of America,29 the professional conduct rules for
lawyers in Queensland do not contain specific provisions mandating how a
lawyer should act when they have concerns, or have confirmed that their client
lacks capacity. This leaves the general ethical duties outlined above to guide the
lawyer in such situations. These duties require the lawyer to ensure their client
has capacity before taking instructions. As always, the lawyer should approach
the particular situation with the overarching principles which underlie the
various ethical duties in mind, rather than adopt a pedantic, legalistic analysis
of whether the situation falls within or beyond the reach of a specifically
enumerated professional conduct rule.
Ultimately, a lawyer will comply with their legal and ethical obligations provided
that they:
(a) direct their mind to the issue of whether their client has capacity to
instruct according to the relevant legal test;
(b) make a thorough and honest assessment of whether the client has
capacity to instruct;
(c) produce a detailed record of the assessment process, the lawyer’s
reasoning and their ultimate conclusions.
25 Legal Profession Act 2007 (Qld) s 227(2).

26 Ibid ss 456, 458.
27 Yonge v Toynbee [1910] 1 KB 215, 228 (Buckley LJ); Goddard Elliott (a firm) v Fritsch [2012] VSC 87 (16
March 2012) [550] (Bell J).
28 J (by her next friend) v J [1953] P 186, 191 (Collingwood J); Richmond v Branson [1914] 1 Ch 968, 974
(Warrington J); Goddard Elliott (a firm) v Fritsch [2012] VSC 87 (16 March 2012) [550] (Bell J).
29 See, eg, American Bar Association, Model Rules of Professional Conduct (at 2013) r 1.14. 17
More detailed information about these issues is provided in Chapters 5 to 7
below.
It cannot be emphasised enough that in conducting this assessment, the lawyer

is not making a determination of whether the client has capacity to make that
decision that will be final and binding on the client or any relevant third parties.
It is not the lawyer’s role to make such a determination; only a court can do that.
However, the distinction between the lawyer’s role and that of the court is not
appreciated by all lawyers. As Bell J held in Goddard Elliott (a firm) v Fritsch:30
The final decision on the mental capacity of the person engaged in the transaction or the
litigation rests not with the lawyers, not with the doctors, not with the client or party
but with the court. Only the court can finally determine whether the person has sufficient
understanding of the particular matters which are at issue so as to have the capacity
to engage in the transaction or participate in the proceeding. The standard of capacity
which is required is context and issue specific and only the court can be the judge of that
context and those issue. If that principle has been understood by those acting for Paul in
the proceeding in the Family Court, this judgment would not have had to be written.
Whether or not a court reaches a contrary conclusion about the client’s capacity
in subsequent proceedings is irrelevant. It is the process, not the ultimate
conclusion, that is important. As Wells writes: ‘[t]here are few right answers;
there is only earnest endeavour and conscientious engagement.’31
30 [2012] VSC 87 (16 March 2012) [562] (emphasis added).

31 Wells, above n 22, 40.
18
4 Basic Principles of
Legal Capacity
4.1 Presumption of capacity

All adult persons are presumed to have capacity to make all
decisions unless there is evidence to the contrary that can rebut the
presumption. The presumption of capacity has long been recognised
at common law.32 It has also been given statutory force by various
Acts legislated by the Queensland Parliament. For instance, the
presumption has been given statutory force in the context of
criminal laws,33 evidence laws,34 intellectual disability and mental
health laws,35 guardianship and administration laws,36 and laws
regarding powers of attorney.37 It has also been given statutory force
by the Commonwealth Parliament.38
4.2 Capacity is time-specific

Capacity fluctuates over time.39 A person may lack capacity for a
particular decision temporarily, for a short period of time or for a long
period of time. If a person lacks capacity in relation to a particular
decision, they may regain and even increase their capacity in relation
32 See, eg, Borthwick v Carruthers (1787) 1 TR 648; R v McNaughten (1843) 10 Cl & Fin 200,
210 (Tindal CJ); Re Cumming (1852) 42 ER 660, 668 (Knight Bruce L J); Boughton v Knight
(1873) LR 3 P & D 64, 71 (Hannen J); Cosham v Cosham (1899) 25 VLR 418, 428-9 (Madden
C J, Holroyd and Hood JJ); Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 706; Re
Bridges [2001] 1 Qd R 574, 575-6 (Ambrose J); Dalle-Molle v Manos (2005) 88 SASR 193,
197 (Debelle J); Lawrence v Federal Magistrate Driver [2005] FCA 394 (15 April 2005) [12]
(Moore J); L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 (12 July
2006) [26]; SA v Manonai [2008] WASCA 168 (15 February 2008) [2], [23] (Pullen JA); Tobin
v Ezekiel [2011] NSWSC 81 (1 March 2011) [24] (overturned on appeal, but not on the point
regarding testamentary capacity); Frizzo v Frizzo [2011] QSC 107 (12 May 2011) [23]-[24],
affd [2011] QCA 308 (1 November 2011) [24]; Goddard Elliott (a firm) v Fritsch [2012] VSC
87 (16 March 2012) [546]; Pistorino v Connell [2012] VSC 438 (25 September 2012) [14];
Anderson v Anderson [2013] QSC 8 (22 February 2013) [45], [52].
33 Criminal Code 1899 (Qld) s 26.
34 Evidence Act 1977 (Qld) ss 9-9D.
35 Mental Health Act 2000 (Qld) s 8(1)(b)(third bullet point); Forensic Disability Act 2011 (Qld) s
7(1)(e)(third bullet point).
36 Guardianship and Administration Act 2000 (Qld), ss 7(a), 11, 34(1), sch 1 general principle 1.
37 Powers of Attorney Act 1998 (Qld) s 76, sch 1 general principle 1.
38 See, eg, National Disability Insurance Scheme Act 2013 (Cth) ss 17A, 4-5.
39 See, eg, Jones v Jones [2012] QSC 113 (27 April 2012) [31]; Re Griffith; Easter v Griffith (1995)
217 ALR 284, 295 (Kirby P). Kirby P was in dissent in the result, but not on this point. 19
to that decision (as a result of, for example, abatement of passing illness, taking
new medication, being assisted by new technology or acquiring new skills). This
means that capacity must be assessed every time a person is going to make a
decision.
4.3 Capacity is domain-specific

There is no single test for capacity; the test depends on the subject matter of
the decision to be made.40 A ‘domain’ refers to the general category of subject
matter that the decision falls into. The courts impose more stringent capacity
requirements for some domains than others. For example, it has been held
that because the making of a testamentary disposition is ‘substantially more
complex and require[s] a greater sophistication of thought’ than giving informed
consent to medical treatment; a ‘clear distinction’ can be drawn between the
capacity necessary to do each.41 Similarly, the capacity required to make a
testamentary disposition has long been recognised as requiring a degree of
mental soundness higher than that required to consent to marriage, enter
into a contract or be held criminally liable.42 The entire structure of the
Guardianship and Administration Act 2000 (Qld), Powers of Attorney Act 1998
(Qld) and Public Guardian Act 2014 (Qld) recognises that a person may only
have impaired capacity for one ‘matter’, but at the same time may retain
capacity in relation to every other ‘matter’.43
4.4 Capacity is decision-specific

Even within a domain, the standard of mental competence required to have
capacity to make a particular decision depends on the nature and complexity
of the decision in question. The more complex the decision, the higher
the standard of mental competence required to make it. Parliament has
acknowledged that ‘the capacity of an adult with impaired capacity to make
decisions may differ according to … the type of decision to be made, including,
for example, the complexity of the decision to be made’.44
This means that, at any given time, a client may not have capacity to make some
decisions within a domain, but may still have capacity to make others within the
same domain. For instance, a client may not have capacity to sell their house,
but may have capacity to manage their pension payments. In such a case, the
client would have capacity to make simple decisions within the domain of
managing their financial affairs, but would not have capacity to make more
complex decisions within that same domain.
4.5 Capacity to decide must be distinguished from the

decision itself
While there is an obvious relationship between a person’s capacity and the
decisions that person makes, whether a person has capacity should not be
determined purely by examining the content of their decisions. Just because a
person makes decisions that seem ‘bad’, ‘unwise’, ‘reckless’ or ‘wrong’ does
40 Gibbons v Wright (1954) 91 CLR 423, 437-8; Dalle-Molle v Manos (2005) 88 SASR 193, 198 (Debelle J).
41 Jones v Jones [2012] QSC 113 (27 April 2012) [30].
42 See, eg, Boughton v Knight (1873) LR 3 P & D 64, 71 (Hannen J).
43 See, eg, Guardianship and Administration Act 2000 (Qld) s 12, sch 2 (list of matters); Powers of Attorney
Act 1998 (Qld) s 32, sch 2 (list of matters).
44 Guardianship and Administration Act 2000 (Qld) s 5(c)(ii).
20
not mean the person lacks capacity to make those decisions. Capacity does not
require a person to always make decisions that are ‘objectively’ correct or in
their own ‘best interests’ or in the ‘best interests’ of certain others.45 Young J has
emphasised that:46
One cannot be too paternalistic. People have the right to manage their affairs, unless
they fall below the level that is prescribed by the Act…. There is no room in the legislation
for benign paternalism. A person is allowed to make whatever decision she likes about
her property, good or bad, with happy or disastrous effect, so long as she is capable.
In relation to testamentary dispositions, Gleeson CJ (with whom Handley JA

agreed) noted that:47
Testamentary capacity is not reserved for people who are wise, or fair, or reasonable,
or whose values conform to generally accepted community standards. A person may
disinherit a child for reasons that would shock the conscience of most ordinary members
of the community, but that does not make the will invalid.
Ignoring the content of decisions when determining capacity also follows from
the fact that every person has their own individual values, beliefs, interests and
relationships that provide a unique matrix within which they make decisions. All
people at times take risks when making decisions or make decisions which, with
the benefit of hindsight, are ‘bad’. To this end, Parliament has acknowledged
that ‘the right to make decisions includes the right to make decisions with
which others may not agree’.48
4.6 No assumption of incapacity due to appearance,

age, behaviour or disability
Capacity should not be assessed solely on the basis of a person’s appearance,
their age, the manner in which they behave and communicate or any (physical
or intellectual) disability or impairment they may have. While Parliament has
acknowledged that the nature and extent of an impairment is relevant to
capacity,49 the mere fact that a disability or impairment exists does not warrant
an automatic conclusion that the person lacks capacity to make particular
decisions. Neither extreme age nor illness are, of themselves, conclusive
evidence of a lack of capacity.50
Importantly, Kirby P has emphasised that:

In judging the question of testamentary capacity the courts do not overlook the fact
that many wills are made by people of advanced years. In such people, slowness, illness,
feebleness and eccentricity will sometimes be apparent – more so than in most persons
of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator
of the right to dispose of his or her property by will.51
45 See, eg, L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 (12 July 2006) [34]: ‘we
would observe that the fact that a litigant has put forward a case that reveals no reasonable cause of
action may say nothing at all about the litigant’s capacity to present such a case. The presumption that
an adult person is capable of managing their own affairs is hardly likely to be displaced merely because a
case has been commenced that has no prospect of success.’
46 Re C (TH) and the Protected Estates Act [1999] NSWSC 456 (3 May 1999) [10], [17].
47 Re Griffith; Easter v Griffith (1995) 217 ALR 284, 291 (Gleeson CJ), 302 (Handley JA).
48 Guardianship and Administration Act 2000 (Qld) s 5(b).
49 Ibid s 5(c)(i).
50 Pates v Craig [1995] NSWSC 87 (19 October 1995) 6 (Santow J); Ruskey-Fleming v Cook [2013] QSC 142 (3
June 2013) [58].
51 Re Griffith; Easter v Griffith (1995) 217 ALR 284, 295; Frizzo v Frizzo [2011] QSC 107 (12 May 2011) [22];
affd [2011] QCA 308 (1 November 2011) [24].
21
4.7 Capacity may be increased with appropriate support
The support available to a person and the environment they are in are factors
that may influence their capacity from time to time.52 Furthermore, given that
capacity is time-specific and decision-specific, a person may have capacity to
make a particular decision at a particular time so long as they are provided
with sufficient support and an environment that assists them to make that
decision. For this reason, Parliament acknowledges that ‘an adult with impaired
capacity has a right to adequate and appropriate support for decision making.’53
The various steps that lawyers can take to maximise their clients’ capacity are
discussed in Chapter 5.3 below.
4.8 Substituted decision making is a last resort

A substituted decision maker is a person who makes decisions on behalf of an
adult with impaired capacity. Substituted decision makers include:
(a) an informal decision maker (eg, family members or friends);

(b) a statutory health attorney, automatically appointed under the Powers of
Attorney Act 1988 (Qld) for health care matters only;
(c) an attorney appointed by the person (when they had capacity to do so)
under an Enduring Power of Attorney or Advance Health Directive;
(d) a guardian or administrator formally appointed by a court or tribunal,
including by the Tribunal (this can be the Public Guardian, as a guardian
of last resort, or the Public Trustee as an administrator);
(e) a person consenting to act as and/or (depending on the jurisdiction)
appointed by order of a court to act as litigation guardian.
Persons should be free to make their own decisions. Parliament has
acknowledged that ‘the right of an adult with impaired capacity to make
decisions should be restricted, and interfered with, to the least possible
extent’.54 This naturally flows from the fact that the right to make decisions is
fundamental to a person’s inherent dignity.55 In most cases, before a substituted
decision maker can be appointed or exercise powers under the relevant Act, the
adult must first have ‘impaired capacity’. Even if a substituted decision maker is
appointed, that decision maker should continue to take into account the wishes
of the person to whom they are appointed to the maximum extent possible.56
Failure to take into account a person’s wishes and include their support network
in decision making can lead to removal of the substituted decision maker by
the Tribunal.
52 Guardianship and Administration Act 2000 (Qld) s 5(c)(iii).

53 Ibid s 5(e).
54 Ibid s 5(d).
55 Ibid s 5(a).
56 Ibid s 34(1), sch 1 general principle 7.
22
Case Study: Basic principles in practice
Will is a homeless man in his mid-50s who lives in his car. He presents to an
outreach service run by a community legal centre in a dishevelled state. He
instructs the lawyer that he has bi-polar affective disorder (and on this basis
has previously been the subject of involuntary treatment orders), is suffering
from advanced terminal kidney disease and would like advice on whether he is
eligible to withdraw his entire superannuation balance to purchase a new car in
which to live.
After asking Will further questions to establish that he understands the

nature of a superannuation account, the options available to him and the
consequences of his choice, the lawyer concludes that Will has capacity to
provide her with instructions in relation to his superannuation affairs. In
reaching that conclusion, the lawyer notes that:
• Will is presumed to have capacity to manage his financial affairs. The fact that
Will has mental and physical illnesses does not displace the presumption,
although the existence of bi-polar affective disorder made the lawyer
cognisant of the issue of capacity and alert to any other ‘red flag’ indicia of
impaired capacity.
• The facts that Will is homeless and presents in a dishevelled state are
irrelevant to his capacity.
• Will’s previous ITOs relate to his capacity (in the past) to consent to treatment
for mental illness; they provide little to no guidance on his capacity to manage
his financial affairs at the present.
• While withdrawing his entire superannuation balance and spending it on a
rapidly depreciating asset (car) may not be an ‘objectively’ rational decision,
this is irrelevant to Will’s capacity.
• Will appears to understand the purpose and nature of a superannuation
account (ie, it cannot be accessed unless certain criteria are satisfied), and
gives the lawyer logical and coherent instructions.
23
5 Practical Matters to Consider
in Taking Instructions
5.1 Who is my client and what is the decision to

be made?
The first thing a lawyer must do is identify their client.57 A lawyer
may determine that the person with questionable capacity is the
client; or they may determine that a family member, friend, carer or
other person who supports the person is the client.
In cases of the former, while others may accompany a client to

provide support and assistance to the client and background
information to the lawyer, the lawyer must only take instructions
from the client and not from the support persons. This is unless, of
course, the support person is also a legally appointed substituted
decision maker whose appointment extends to legal matters, either
generally or in relation to the particular decision to be made.
Case Study: Identifying the client

George is appointed as his mother Cathy’s guardian, for all personal matters.
The Tribunal will soon review this appointment. George seeks legal advice
in relation to preparing for the Tribunal review. Both he and Cathy wish for
the current arrangements to continue. After making multiple unsuccessful
attempts to contact Cathy directly, it becomes apparent to the lawyer managing
his case that she will be unable to obtain any instructions from Cathy directly.
The lawyer concludes that George is her client. George is the only person with
whom the lawyer has had contact for this matter. Further, he is not instructing
the lawyer to appear on Cathy’s behalf (this would mean that Cathy would be
the client).
The advice to George should emphasise the duties that he owes his mother, in
particular his duties to give her all necessary support, access to information and
opportunities to participate in decisions that affect her.
57 Sabatino, above n 9, 487.

24
Focus: Substituted decision makers
•• Even if a person (the principal) has appointed a substituted decision
maker or has had a substituted decision maker appointed to them,
the principal remains the lawyer’s client. In some cases, however, the
substituted decision maker may be the lawyer’s client (particularly
where the lawyer is engaged directly by the substituted decision
maker and the lawyer was not previously acting for the principal).
•• Where a matter is within the scope of a substituted decision maker’s

appointment, only the substituted decision maker can provide a
lawyer with lawful, proper and competent instructions for that
matter. But the substituted decision maker can only provide the
lawyer with instructions in relation to a particular decision to be
made on behalf of a principal if their appointment extends to legal
matters (either generally or in relation to that particular decision).
If the substituted decision maker’s appointment does not extend to
legal matters, they cannot instruct the lawyer.
•• In all cases, including where the substituted decision maker is the

lawyer’s client, the substituted decision maker must give the principal
all necessary support, access to information and opportunities to
participate in decisions that affect the principal. They must also take
into account the principal’s views and wishes to the greatest extent
possible and exercise their powers in the way least restrictive of the
principal’s rights.
•• See Chapter 7.2 for more information about substituted decision

makers.
Before a lawyer can act on a client’s instructions, the lawyer must be satisfied that the
client has the requisite capacity to make the particular decision at that particular time.
Given the domain-specific and decision-specific nature of capacity, this requires the
lawyer to identify the particular decision the client is seeking to make and the relevant
legal test for capacity that applies to that decision. The specific legal tests for different
types of decisions are outlined in Schedule 2.
25
Case Study: Challenging a guardianship or
administration decision
Henry is an elderly man who seeks to remove the Public Guardian as his
guardian and the Public Trustee as his administrator. His recent application for a
declaration of capacity was dismissed by the Tribunal and he seeks advice on his
prospects of an appeal. Henry has obtained a medical report from his general
practitioner stating that he has capacity in relation to the matters for which the
guardian and administrator are appointed.
For the purposes of the appeal proceedings, Henry is presumed to have capacity
and has a right to be represented. The lawyer is able to obtain logical and
coherent instructions from Henry in relation to seeking reasons for the decision
and drafting submissions for the appeal. The lawyer concludes that Henry has
capacity to instruct and is thus able to act on his instructions. The fact that he
may previously have lacked capacity to make decisions in relation to certain
personal and financial matters is not relevant to Henry’s decision to appeal.
However, the contract to retain the lawyer’s services will need to be signed by
the Public Trustee as his administrator, unless the lawyer is acting on a pro bono
basis.
Similarly, if Henry had sought the assistance of a lawyer in relation to a property

settlement, the lawyer would be required to take instructions from the Public
Trustee as Henry’s administrator, unless and until that appointment has been
revoked.
See Item 9.2 of Schedule 2 for further discussion.
5.2 Is there a reason to question my client’s capacity?

In many cases, there will be no reason to doubt a client’s capacity to give legal
instructions. However, lawyers should always be cognisant of the fact that
some clients with impaired capacity may present extremely well despite their
impairment or actively seek to hide their impairment. Schedule 1 lists various
‘red flag’ circumstances that could (but do not necessarily) indicate that a client
lacks capacity.
As a preliminary screening tool, lawyers may wish to question clients about

whether they:58
(a) have been diagnosed with a mental illness, intellectual disability, acquired
brain injury, learning disability or other cognitive impairment;
(b) experienced difficulties with learning or went to a special school or
received additional learning support;
(c) receive the disability support pension;
(d) receive support for day-to-day activities either from family, friends or
through paid support workers;
58 Susan Hayes, Hayes Ability Screening Index Record Booklet (University of Sydney, 2000); Legal Aid
Queensland, Legal Aid Queensland, Criminal Law Duty Lawyer Handbook (5th ed, 2012) 206-7 <http://
www.legalaid.qld.gov.au/publications/Practitioners-service-providers/Documents/duty-lawyer-
handbook/criminal-law-duty-lawyer-handbook.pdf>.
26
(e) have lived in institutions or disability-funded accommodation or have
been admitted to a mental health unit; or
(f) have ever been the subject of a guardianship or administration order, an
involuntary treatment order or a forensic order.
If the client is the subject of a current guardianship or administration order
that extends to ‘legal matters’, the lawyer must seek to obtain and act
on the guardian’s or administrator’s instructions. Refer to Chapter 7.2
for further details.
However, if the lawyer has no reason to question the client’s capacity, then
they should proceed to take and act on their client’s instructions. In the
absence of any indicia of impaired capacity, the lawyer is entitled to rely on
the presumption that the client has capacity.
5.3 What can I do to maximise my client’s capacity?

‘Capacity deserves to be judged under the best circumstances possible.’59
Further, lawyers have ethical and legal duties to act in the best interests of their
clients and not to discriminate against their clients. This means that lawyers
should take all reasonably available, positive steps to maximise their client’s
capacity.60 There are various techniques lawyers might use to enhance and
maximise a client’s capacity. What works best will in every case depend on the
particular client; every client is, of course, unique.
(a) Meet with the client in person and alone

In many cases, it will be practically impossible for the lawyer to
determine whether a client has capacity without meeting the client
in person; in particular, in relation to wills and powers of attorney,
telephone conferences and receiving instructions through support
persons will not suffice.61 It is imperative that the initial interview i
nclude one-on-one time between the lawyer and the client. This not
only allows the lawyer to develop rapport with the client and ensure
that the client understands the lawyer’s role and the nature of the
lawyer-client relationship, but also affords the lawyer an opportunity to
assess the client’s capacity and whether the client is subject to undue
influence from any support person.62

60 Client Capacity Committee of the Law Society of South Australia, Statement of Principles with Guidelines
(2012) 16-7 <http://www.lawsociety.sa.asn.au/PDF/ClientCapacityGuidelines.pdf>.
61 Endicott, above n 18, 1. One exception could be where the client is already well-known to the lawyer.
See also Office of the Public Guardian, Guidelines for Witnessing Enduring Documents (2014) Department
of Justice and Attorney General, 3 <http://www.publicguardian.qld.gov.au/__data/assets/pdf_
file/0009/269307/OPG-Fact-Sheet_Guidelines-for-Witnessing-Enduring-Documents.pdf>.
62 Sabatino, above n 9, 487; Public Guardian, above n 61, 3; Lindy Willmott and Benjamin White, ‘Solicitors
and enduring documents: current practice and best practice’ (2008) 16(3) Journal of Law and Medicine
466, 486; Client Capacity Sub-Committee, Client Capacity Guidelines: Civil and Family Law Matters
(2009) Law Society of New South Wales, item 11 <http://www.lawsociety.com.au/ForSolictors/
professionalstandards/Ethics/Protocolsguidelines/Clientcapacityguidelines/index.htm>.
27
(b) Focus on the client as an individual
At the outset, the lawyer should discard all personal biases and
prejudices that may have a subconscious effect on their assessment of
whether a client has capacity.63 Ethnic, cultural or religious barriers to
communication should be recognised and conscientiously put to one side
when assessing capacity.64 If the client has some form of disability or
impairment, the lawyer should ask the client if the client (or a third party)
can tell the lawyer how the lawyer can best accommodate the disability or
impairment and make the client as comfortable as possible.
It should not be assumed that:
(i) elderly clients have physical or intellectual impairments or that

persons with physical or intellectual impairments lack capacity;65
(ii) clients with mental illness or subject to an involuntary treatment
order lack capacity as ‘incapacity is not “status” or diagnosis bound’;66
(iii) symptoms of emotional distress, physical fatigue, anxiety, depression
and inebriation constitute a lack of capacity (in any case, the
difficulties presented by such situations may simply be dealt with by
delaying the decision);67 or
(iv) eccentricities, aberrant character traits or taking high risk decisions
connotes impaired capacity.68
Having said that, where a lawyer is aware (or reasonably considers)
that a client is elderly or has a diagnosed medical condition relevant to
their capacity, the lawyer should ‘take extra care’ to assess and ensure
that the client has capacity before the lawyer proceeds to act on their
instructions.69
Getting to know the client in more depth will help to reveal the client’s
true motives for seeking legal assistance. Without considering issues from
the client’s subjective personal frame of reference, there may be a greater
tendency for lawyers to see the client as lacking capacity.
Lawyers should be open to the fact that their perspective on the client’s
capacity may change once they get to know the client. Where appropriate,
lawyers may enquire about and seek to understand the client’s values,
historical behaviour and cultural factors that influence the client’s
decision making.70
(c) Establish trust and confidence through the lawyer-client relationship

Establishing a relationship of trust and confidence with a client is vital to
enhancing that client’s capacity. The lawyer should ensure that the client
knows that the lawyer is working for the sole and constant purpose of
63 Law Society of New South Wales, When a client’s capacity is in doubt: A Practical Guide for Solicitors (2009)
18 <http://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/023880.pdf>.
64 Ibid.
65 James Gallagher and Cara Kearney, ‘Representing a Client with Diminished Capacity: Where the Law
Stands and Where It Needs to Go’ (2003) 16 Georgetown Journal of Legal Ethics 597, 604.
66 O’Neill and Peisah, above n 8, 4. See also Re HE [2013] QCAT 488 (20 August 2013) [27].
67 Law Society of South Australia, above n 60, 14.
68 Sabatino, above n 9, 486; Wells, above n 22, 38.
69 Public Guardian, above n 61, 3. See further Chapter 5.4 below.
28
helping the client achieve a positive outcome and, to this end, owes the
client duties of loyalty and confidentiality. Explaining in detail the nature
and extent of these duties will, in some cases, be imperative to gaining
the client’s trust and confidence.
Some clients may fear that their lawyer is acting for some ulterior
purpose (or generally that the lawyer is part of ‘the system’ working
against them). Any such fears should be immediately dispelled by frank
explanation of the lawyer’s duties to the client. In particular, the lawyer
should ensure that the client understands the relationship is confidential
and that the client may divulge information freely without fear of it being
shared with others without prior consent.71 The lawyer should emphasise
that, except in extremely rare circumstances, the lawyer cannot reveal
anything the client tells them to any third party (including mental health
and disability services).
(d) Adapt your communication style to the client

Clear, simple and direct communication with a client will help them
to understand information, thereby bolstering their capacity. Begin all
interviews with simple questions and answers; move on to more complex
questions later. Engage in sensitive exploration of the client’s story and
actively listen to the client, acknowledging and responding directly to the
client’s thoughts, feelings, words and actions. This will help the client to
feel respected, valued, and immersed in the decision making process; it
also enhances the client’s trust and confidence in the lawyer.72
Proceed slowly, take breaks (if necessary) and allow the client extra time
to formulate responses. Be willing to explain the nature and effects
of options exhaustively (repeating, paraphrasing and summarising
information where necessary) and allow the client plenty of time to
digest all the relevant information. Just because a client has difficulty
processing and comprehending information does not mean that they are
unable to do so.
Asking the client open-ended questions (including asking them to explain

in their own words what they know and what they have learnt) is also
a useful method of testing the client’s capacity to understand, retain,
recall and communicate relevant information.73 Provide cues to assist
the client’s recall and if the client cannot answer such questions correctly
or accurately, gently explain the correct answers.74 Later on during
the meeting, ask the same questions and see whether the client can
accurately remember and communicate the previous explanation.75
As Wells notes, ‘[i]n all but a handful of rare cases, careful exploration and
communication will often allay any doubts about capacity to instruct.’76
71 Law Society of New South Wales, above n 63, 19.

72 Law Society of New South Wales, above n 63, 18-19.
73 Willmott and White, above n 62, 486.
74 Law Society of New South Wales, above n 63, 19-20.
75 Public Guardian, above n 61, 4.
29
(e) Interpreters
Interpreters may be used to overcome communication barriers arising from
hearing impairment, language or culture.77 Where the lawyer and client
will be meeting multiple times, it is useful to have the same interpreter
present at all meetings. Depending on the nature of the client’s matter, the
interpreter may need to be accredited to a certain level.
It is advisable to ask the interpreter to directly translate the interactions

(that is, not to amend questions and responses in any way) so that
the lawyer can gauge whether there are any concerns with the client’s
capacity, and to ensure that the client’s instructions are not inadvertently
altered by the translation process.
As far as practicable, the matters discussed in Chapter 5.3(j) below in

relation to seeking third party assistance should also be kept in mind when
an interpreter is involved in a client interview. Legal professional privilege
applies to communications between the lawyer and client through the
medium of the interpreter, but will not apply to information the client
confides solely in the interpreter.78 It is important that the interpreter is
made aware of the legal and confidential nature of the discussion.
(f) Ensure the meeting environment is comfortable and/or familiar

Meeting with a lawyer may be intimidating or stressful to a client,
reducing their comfort level, confidence and overall capacity. Try to ensure
that meetings are as comfortable and familiar as possible. A lawyer may
‘dress down’ for meetings to help clients feel more at ease. Meetings may
be arranged in locations familiar to the client or which put the decision
in context (for example, visiting a particular location).79 In many cases,
home visits may be ‘especially conducive to optimal decision-making’.80
(g) Communication tools

Where the client uses non-verbal communication (for example, writing,
typing or using assisted communication devices), the lawyer should
ensure the client has access to relevant materials and equipment.81
(h) Accommodate visual and auditory impairments

A client’s capacity may be drastically improved by taking positive steps to
accommodate visual and auditory impairments. What steps are useful will
invariably depend on the particular client, but in general, meetings should
be conducted in well-lit areas with minimal background noise. The furniture
should be arranged so as to facilitate direct communication, provide clear
pathways and minimise glare (face the client away from windows).82

78 Kathy Laster and Veronica Taylor, Interpreters and the Legal System (Federation Press, 1994) 223-4. See also
Total Trading
SRL v Nastri [2007] VSC 313 (31 August 2007) [54].
81 The use of facilitated communication to receive instructions, that is, a third party enabling a person to
communicate by assisting them to point at objects, pictures, symbols, words or letters, continues to be a
contentious issue and is beyond the scope of this Handbook.
82 Sabatino, above n 9, 488; Law Society of New South Wales, above n 63, 19-20.
30
To accommodate auditory impairments: minimise background noise,
look at the client when speaking (this allows lip-reading), speak slowly
and enunciate, do not over-articulate or shout, sit close to the client,
have auditory amplifiers available, ensure the client has access to any
hearing aids they normally use and prepare written advice and written
summaries (which the client can also use later to refresh their memory).83
To accommodate visual impairments: increase lighting, reduce glare,

use matte (not glossy) paper, use large font, allow the client additional
time to read, allow the client additional time to refocus when switching
between reading and discussion, use alternative formats such as braille or
text to speech, be aware that clients may have a narrowed field of vision
and have reading and magnifying glasses available.84
(i) Consider the timing of decision making and facilitate gradual or delayed
decision making
Meeting the client regularly will help the client become more familiar with
their lawyer, enhancing the client’s comfort, confidence and trust in the
lawyer. Multiple meetings also allow lawyers to obtain a more long-term
understanding of the client’s capacity and any temporal variations in that
capacity.85 With such an understanding, a lawyer may better adapt to the
client and will be in the best position to act in the client’s best interests.
Fatigue may be avoided by scheduling multiple shorter meetings at times
when the client is most alert (this is commonly in the morning).86
Information and decisions may be broken down into component parts,

particularly if the client is overwhelmed by the enormity of the process.
Breaking decisions down into discrete steps and proceeding step-by-step
may assist the client to order their thoughts and better communicate
their wishes. Addressing a single issue at a time avoids divided attention
and confusion. Some clients may find it useful to be provided with
written summaries (including key issues, decisions and documents to
bring to the next meeting). Flow charts may also be useful for explaining
the steps involved in a decision.87
Many people who have mental illness may experience temporal

fluctuations in their capacity. Many symptoms of mental illnesses will
not be readily apparent and may arise or subside with the passing of
time. Medication may have a significant positive or negative impact on a
client’s capacity (for instance, long-term ‘depot’ antipsychotic injections)
and lawyers should seek to understand the nature and effect of a client’s
medication regime on their capacity. Delaying meetings or arranging
follow-up meetings with the client for a time when they are in a more
lucid state may significantly enhance their capacity.88

84 Ibid 19-20.
85 Sabatino, above n 9, 488; Law Society of New South Wales, above n 63, 20.
86 Sabatino, above n 9, 488; Law Society of New South Wales, above n 63, 21.
87 Law Society of New South Wales, above n 63, 20-1; Law Society of South Australia, above n 60, 18.
88 Sabatino, above n 9, 489; Law Society of South Australia, above n 60, 18. 31
Case Study: Maximising a client’s capacity
Joan is admitted to hospital on an involuntary treatment order. A social worker
refers Joan to a lawyer for advice and assistance, concerned that Joan has spent
a long time in hospital and is receiving treatment she does not wish to have.
At the first face-to-face appointment with the lawyer, Joan is affable and
compliant but is unable to recall basic advice the lawyer provides her with. In a
follow up telephone call, Joan is terse and terminates the call early.
In the next conversation, the lawyer leaves the client his phone number and
invites the client to contact him should she have any questions. The following
week, Joan contacts the lawyer for a further discussion. The lawyer is mindful to
keep the conversation to no longer than 5 minutes.
Over the course of 4 more conversations, the lawyer is able to establish
a rapport with Joan; Joan is able to remember the lawyer, recalls earlier
conversations they have had and is consistent in what she would like to happen.
On this basis, the lawyer is satisfied that she has capacity to give instructions in
relation to a Mental Health Review Tribunal review hearing.
(j) Seek third party assistance (subject to client consent)

Clients may initially feel uncomfortable speaking with a lawyer alone.
Invite the client to bring a support person (friend, family or other
caregiver) for a portion of the meeting (especially during the introductory
phase).89 Apart from putting the client at ease, support persons may be
able to provide the lawyer with extensive background information on
the client (including any impairment he or she has) and also assist the
client to understand their options and explain the consequences of each
option in light of the client’s specific familial, social, financial and medical
situation.90
However, extreme caution should be exercised when consulting third

parties. Third parties should only be consulted with the client’s express
consent. Failure to obtain consent would constitute a breach of the
lawyer’s duty of confidence. Further, the client should always retain
control of the decision making process and be present at any meeting
with third parties, in case they decide to withdraw consent. Once third
parties have been consulted, the lawyer should always confirm any
information provided by the third party as well as the client’s instructions
with the client alone.91 It is also important that lawyers do not become
reliant upon third parties for information.
Lawyers should be alive to any undue influence the third party exercises
over the client (or any advantages or benefits they seek to achieve) and
immediately ask the third party to leave the room where they consider

90 Law Society of South Australia, above n 60, 19, 22.
91 Ibid 20, 23.
32
such influence is being exercised (or such an advantage or benefit is
going to be obtained).92 Lawyers should also ensure that third parties do
not become de facto substituted decision makers. This can be achieved by
expressly confirming with the third party at the start of any meeting that
their role is to assist the client in making the client’s own decisions, not to
impose their own views on the client as to what decision is in the client’s
best interests.93
Carers are often a wealth of information on how a client’s capacity can be

maximised.94 They may provide information on the best time of day to
meet with a client, the timing of medication and its effects and the best
methods of communicating with a client.95 While it is obviously best to
obtain consent before seeking such information from carers, failure to
do so would arguably not constitute a breach of duty provided that such
enquiries did not disclose any confidential information to the carer (such
as any concern the lawyer may have about the client’s capacity or the
client’s instructions).
5.4 How do I assess my client’s capacity?

Having identified the relevant legal test and sought to maximise the client’s
capacity, the lawyer must then conduct a preliminary assessment of the client’s
capacity bearing in mind the presumption of capacity. In some cases, it will
be clear that a client lacks capacity (for example, where they are completely
disoriented in time and space or unable to comprehend anything that is said to
them or unable to communicate).96 However, in most cases capacity will not be
so clear-cut.
In order to conduct this preliminary assessment, the lawyer must ask the client
a series of questions and carefully observe the client’s responses. Given the
domain-specific and decision-specific nature of capacity, the questions will
depend on the particular person, the particular decision they seek to make and
the test for legal capacity to be applied (see Schedule 2). However, in general,
the lawyer should ask the client questions that will give an indication of the
following:97
(a) Does the client have a basic understanding of the relevant facts and
issues and sufficient knowledge of the world to make decisions such as
the one in question?
(b) Does the client have the cognitive ability to manipulate that information
so that they can make an informed decision?
(c) Is the client aware of their own abilities and limitations, any memory loss
and its impacts, and any (possibility of) exploitation?
(d) Does the client understand the different options available and can they
compare the likely consequences of each of those options?
92 Willmott and White, above n 62, 486; Law Society of South Australia, above n 60, 22.
93 Law Society of South Australia, above n 60, 21, 23.
94 However, practitioners should be alive to issues of conflicts of interests when speaking with paid support
workers.
95 Barbara Hamilton and Tina Cockburn, ‘Capacity to make a Will and Enduring Power of Attorney: Issues
new and old’ (2008) 38 QLS Journal 14, 18; Law Society of South Australia, above n 60, 20.
97 Sabatino, above n 9, 496; Endicott, above n 18, 4-5.
33
(e) Does the client understand the likely consequences (for them and for
others) of their decisions or failure to make decisions?
(f) Does the client have the ability to clearly articulate a reasoning process
behind their decisions?
(g) Are the client’s desired outcomes stable or do they vary over time or
depending on who is present? Can the client remember prior decisions?
(h) Are the client’s conclusions and decisions consistent with the client’s
previous decisions, prior behaviour, core beliefs and values and stated or
inferred goals?
(i) Is the decision substantively fair or will it lead to the injury or exploitation
of the client or a third party?
(j) Is the decision irreversible? If so, does the client attach appropriate
significance to the decision?
There are a number of standardised screening tests used by medical
professionals to assess cognitive ability (such as the Mini Mental State Exam).98
However, lawyers should exercise caution when relying on standardised
screening tests, particularly if they are not administered by an appropriately
qualified medical professional. In relation to the use of the MMSE to establish
testamentary capacity, Mullins J has commented:99
The result of the MMSE may be an indicator of cognitive impairment, but it is a blunt
instrument and must be considered in conjunction with other evidence of the testator’s
capacity at the time of making the will.
While these tests may be used as starting points to assist a lawyer in

determining whether their client has capacity, it is important to remember
that they ‘provide only a crude global assessment of cognitive functioning’
and ‘[f]urther inquiry is still necessary’ given the domain-specific and decision-
specific nature of capacity. 100
In cases where the lawyer has significant doubts about a client’s capacity, it may
be useful to have a second lawyer attend interviews and witness the client’s
capacity.101 The attendance of such a person is not a breach of the duty of
confidence, but good practice and common courtesy would favour obtaining the
client’s consent first.102
5.5 What records of capacity assessment should I keep?

Where a client’s capacity is in issue, it is vital that thorough, comprehensive and
contemporaneous file notes are taken of any consultation with the client and
any relevant interactions with third parties.103 Parliament has recognised the
importance of maintaining accurate records in relation to lawyers who witness
98 See, eg, William Molloy and Doug Drummond, Standardized Mini-Mental State Examination (SMMSE),
Ministry of Health, Province of British Columbia <http://www.health.gov.bc.ca/pharmacare/adti/
clinician/pdf/ADTI%20SMMSE-GDS%20Reference%20Card.pdf>.
99 Ruskey-Fleming v Cook [2013] QSC 142 (3 June 2013) [65] (emphasis added).
101 See, eg, Sharp v Adam [2006] EWCA Civ 449 (28 April 2006).
103 Law Society of New South Wales, above n 63, 6; The Bar Council (UK), Client Incapacity (February 2014) 5
<http://www.barcouncil.org.uk/for-the-bar/professional-practice-and-ethics/client-incapacity/>.
34
powers of attorney; a note to section 41(2) of the Powers of Attorney Act 1998
(Qld) provides that ‘it is advisable for the witness to make a written record of
the evidence as a result of which the witness considered that the principal
understood [the matters listed in section 41].’104
Such file notes will be invaluable:
(a) in any subsequent legal proceedings (which may occur many years after
having taken the instructions) where the issue of capacity is in dispute
and must be the subject of a final and binding determination by the
court;
(b) for refreshing the lawyer’s and client’s memory and preventing any
unnecessary hindrances in the client’s progress; and
(c) in assisting medical professionals who are subsequently consulted
regarding the client’s capacity in gaining a more longer-term view of the
client’s capacity.
At a minimum, a lawyer’s file notes should include the following details:105
(a) the date, time, length and location of all interviews with the client;
(b) the persons who were present for the interview (including the times at
which they entered and exited the interview room);
(c) the steps the lawyer took in assessing the client’s capacity (including all
questions and the client’s answers to those questions); and
(d) details of any information relevant to a client’s capacity that a lawyer
has gained from another source (for example, assessments of the client’s
capacity conducted by a medical professional at the request of the lawyer
or information about the client’s capacity volunteered to the lawyer by
any third party).
Finally, detailed file notes will also assist to show that the lawyer complied
with their legal and ethical obligations. For instance, in Ruskey-Fleming v
Cook, a lawyer engaged in extensive questioning of his elderly client, made
comprehensive diary notes of the questions and answers and subsequently
prepared a memorandum outlining the meeting.106 The lawyer genuinely
believed that his client had testamentary capacity and proceeded to allow the
client to execute an updated will.
In finding that the client did not have testamentary capacity, Mullins J
emphasised that it is the process the lawyer undertakes to assess capacity (not
the ultimate conclusion they reach) that determines whether they have fulfilled
their legal and ethical duties:107
104 Powers of Attorney Act 1998 (Qld) s 41(2) (Editor’s Note). See also Form 3 – Enduring Power of Attorney
(Long Form), which contains the following direction to witnesses (lawyers) on page 12: ‘It is strongly
recommended that, if you are in any doubt, you make a written record of the proceedings and of any
questions you asked to determine the principal’s capacity.’
105 Public Guardian, above n 61, 6.
106 [2013] QSC 142 (3 June 2013) [25].
107 Ibid [64]. See also Sharp v Adam [2006] EWCA Civ 449 (28 April 2006) [27], where the Court of Appeal
upheld a decision of the trial judge that a testator did not have testamentary capacity at the time he
made his will but noted that the lawyer that prepared the will acted ‘in a quite exemplary fashion’ and
‘did everything conceivably possible’ to establish whether the testator had capacity (including involving
another lawyer from her firm, involving the testator’s general practitioner, extensively questioning the
testator and maintaining extensive notes of all dealings).
35
The greater the preparation and the care exercised by a solicitor when taking instructions
from a client about a will and attending on the client for the purpose of having the will
signed, the more likely there will be available to the court relevant evidence to determine
the issue of testamentary capacity. Whether or not the solicitor has complied with what
is reasonably required to carry out the solicitor’s professional duty in those circumstances
of a particular case does not dictate the conclusion as to testamentary capacity.
In contrast, in Legal Services Commissioner v Ford, Fryberg J held that a lawyer

was guilty of unsatisfactory professional conduct because, inter alia, ‘he failed to
make an appropriate written record of all steps taken in assessing [his client’s]
competence or, toward that end, including all questions and answers.’108 In that
case, the lawyer had attended on his client in a nursing home in order for her to
execute a new will and an enduring power of attorney. Despite various factors
indicating that the client may have lacked capacity, the solicitor made only a
brief statement about the client’s capacity in his diary.109
108 [2008] LPT 12 (22 August 2008) 22.

109 Ibid 16. The statement provided: ‘She was quite clear in her intentions and her recollections of her
instructions to me on 3rd December and she was able to tell me her wishes without any prompting as
to what she wished in her Will and in relation to the Power of Attorney. I again considered that she was
alert and that her Will clearly reflected her wishes and desires without any intimation of any pressure or
influence being exerted on her.’
36
6 What do I do if I Determine
My Client has Capacity?
If the lawyer’s preliminary assessment of the client reveals that the

client has capacity to make the particular decision, the lawyer should
make detailed file notes of the basis on which they have reached this
conclusion. The lawyer is then able to take the client’s instructions
and act upon them. However, it is imperative that lawyers continually
assess whether their client has capacity across the course of the
retainer; the client must have capacity at the time the lawyer seeks
to act on their instructions.110
In cases where the client’s capacity is likely to diminish over time

(for example, because they are elderly or in the early stages of a
significant illness), the lawyer should raise the issue of the client’s
capacity into the future with the client and assist the client to make
appropriate arrangements for any future time when the client may
lack capacity.111 Depending on the client’s instructions, this may
involve the preparation of an enduring power of attorney, an advance
health directive or both.
If a substituted decision maker is appointed to the client for a

particular decision but it is clear that the client has capacity for that
decision, the lawyer should consider raising with their client the need
to take steps to have the substituted decision maker’s appointment
varied or terminated. Ideally, this would involve encouraging and
supporting the client to make an application for a review of the
substituted decision maker’s appointment. In some circumstances,
this could also involve alerting the Tribunal or relevant court, making
an application to the Tribunal or a court for a declaration that the
client has capacity for that decision or seeking orders for the removal
of the substituted decision maker (either completely or solely in
relation to that decision). 112
110 To the extent that the instructions do not require the lawyer to take steps on behalf of their
client, for instance, instructions to prepare an advice for the client, the lawyer can arguably
prepare the advice and furnish it to the client even if in the intervening period the client
has lost capacity. The lawyer cannot act on instructions to the extent that they would be
performing an act on the client’s behalf.
111 Law Society of New South Wales, above n 63, item 3.
112 See, eg, Powers of Attorney Act 1998 (Qld) ss 109A, 110, 111, 116; Guardianship and
Administration Act 2000 (Qld) ss 29, 31, 81, 146; Uniform Civil Procedure Rules 1999 (Qld) r
95(2); Federal Circuit Court Rules 2001 (Cth) r 11.11(1); Family Law Rules 2004 (Cth) r 6.10(1);
High Court Rules 2004 (Cth) r 21.08.6; Federal Court Rules 2011 (Cth) r 9.65.
37
Case Study: Ostensible capacity and substituted
decision makers
Beth seeks representation at a Mental Health Review Tribunal hearing. Her
lawyer assesses her as having capacity to instruct. He then finds out the day
before the hearing that the Public Guardian has been appointed as Beth’s
guardian.
The lawyer asks Beth for permission to talk with the Public Guardian officer
or the Tribunal to obtain a copy of the guardianship order. If Beth agrees, the
lawyer should obtain the order and determine whether it relates to ‘legal
matters’ and remains current. If it does not relate to legal matters or has
expired, the lawyer can take instructions from Beth provided that he remains
of the opinion that she has capacity to instruct.
If the order does relate to legal matters and is current, even though the
lawyer has assessed Beth as having capacity, he can only take instructions
from the guardian. However, the guardian must take into account Beth’s
wishes and maximise her involvement at the hearing.
If Beth forbids the lawyer from speaking with the guardian or Tribunal, then
his position is difficult. If the extent of the guardianship can be determined
at the hearing, the lawyer can seek an adjournment and obtain instructions
from the appropriate source. If not, he may have to seek leave to attend the
hearing as a support person to assist Beth to express her views, wishes and
interests.
38
7 What do I do if I Determine My
Client does not have Capacity
or has Questionable Capacity?
If, having taken all reasonable steps to maximise a client’s capacity,

it becomes evident that the client does not have capacity to give
instructions or doubts remain in the lawyer’s mind about whether
the client has capacity, there are a number of options to consider.
There are also courses of action that are not appropriate. In
determining which option(s) will be most appropriate, the lawyer
must exercise careful professional judgment in balancing competing
factors and considerations. In essence, this process encapsulates an
evaluation of the risks to the client, and a determination of the most
appropriate level of intervention (if any) in light of these risks. Even
if it is clear that the client does not have capacity, the lawyer ‘should
still seek the client’s views and take them into account.’113
7.1 Actions NOT open to lawyers

Although a lawyer must act in their client’s best interests, this duty
is constrained by both the duty of confidence and the duty to follow
the client’s lawful, proper and competent instructions.114 Accordingly,
a lawyer should not:115
(a) without express instructions, act in what they believe to be

the client’s best interests; or
(b) unilaterally seek instructions from a third party. Informal
decision makers have no lawful authority to give lawyers
instructions on behalf of another.
Ceasing to act for the client is a significant step and should only be
taken once all other available options are exhausted.
113 Bar Council (UK), above n 103, 2.

114 Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012) rr 4.1.1, 9, 8.1;
Legal Profession (Australian Solicitors Conduct Rules) Notice 2012 (Qld).
115 Law Society of South Australia, above n 60, 24-25.
39
7.2 Has a substituted decision maker been formally
appointed by or for the client?
(a) Substituted decision makers
Lawyers should enquire whether a substituted decision maker has been
formally appointed by or for the client to make decisions on the client’s
behalf. A substituted decision maker can be formally appointed:
(i) by the client under an enduring power of attorney;116

(ii) by an order of the Tribunal or a court appointing a guardian or
administrator to an adult with impaired decision making capacity;117
or
(iii) in relation to litigation, by a person consenting to act as and/or
(depending on the relevant court) an order of a court appointing
a person to act as the litigation guardian of a person under a legal
incapacity.118
At first instance, the lawyer should ask the client whether a substituted
decision maker has been appointed by or for the client. If the client is unsure,
the lawyer may also check with the relevant support service, or with the
client’s family and friends (with the client’s consent). If no information is
available from these sources, the lawyer can lodge an enquiry about current
Orders by calling or writing to the Registrar of the Tribunal, identifying the
lawyer’s association with the client and advising the client’s name and date
of birth. There is no Queensland register of enduring powers of attorney.
If an administrator is appointed for financial matters, then that suspends

the right of the principal to make those decisions, irrespective of their
capacity.119 It may be, therefore, that only the administrator will be able
to contract with a lawyer to retain their services on a fee basis. If an
administrator is unwilling to retain the lawyer, the lawyer may be able to
proceed by obtaining an amendment to the Tribunal appointment, seeking
a Tribunal direction or, if litigation is involved, by the appointment of a
litigation guardian.
Under the Uniform Civil Procedure Rules 1999 (Qld), a person under a legal
incapacity may only commence or defend proceedings only by way of a
litigation guardian. 120 A litigation guardian is primarily liable for the costs of
the lawyer they engage. They are also personally liable if costs are awarded
against a plaintiff they represent, but are not generally personally liable if
costs are awarded against a defendant they represent. All costs properly
incurred by a litigation guardian may be recovered from the estate of the
person who they represent.121
116 Powers of Attorney Act 1998 (Qld) s 32.

117 Guardianship and Administration Act 2000 (Qld) s 12.
118 Uniform Civil Procedure Rules 1999 (Qld) r 95; Federal Circuit Court Rules 2001 (Cth) r 11.11; Family Law Rules
2004 (Cth) r 6.10; High Court Rules 2004 (Cth) r 21.08; Federal Court Rules 2011 (Cth) r 9.63.
119 Bergmann v DAW [2010] QCA 143 (11 June 2010) [16] (McMurdo P), [18] (Holmes JA), [35], [41], [43] (Muir JA).
120 Uniform Civil Procedure Rules 1999 (Qld) rr 93-99.
121 Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws, Report No 67 (2010)
vol 4, 371-2.
40
Focus: Where a substituted decision maker is not
good enough
There are some decisions that cannot be made by a substituted decision maker, for
instance:
•• entering a plea for a criminal charge;
•• consenting to marriage;
•• making or revoking a will; and
•• appointing an attorney.
See section 14(3) and schedule 2 (definition of ‘special personal matter’) in the
Guardianship and Administration Act 2000 (Qld).
In these cases, alternative legal actions will need to be taken to produce the desired
outcome. For example, an application to the Supreme Court for a statutory will.
(b) Where there is an enduring power of attorney

If an enduring power of attorney exists, it should be reviewed to determine
whether the appointment remains current and whether the decision to
be made (and legal matters) is within the scope of the appointment. In
doing so, the lawyer should ensure that the enduring power of attorney is
properly executed and does not have any errors on its face. If so, the lawyer
is able to act on the instructions of the attorney for the matter. However,
if the document does not appear to be validly executed or contains errors
on its face, the lawyer should conduct a more thorough investigation to
determine whether the attorney has the authority to instruct. If still in
doubt, an application may be made to the Tribunal or Supreme Court for a
declaration on the validity of the enduring document.122
Case Study: Existing enduring power of attorney

Liz is unable to make decisions about where she lives. Her community care provider
applied for and was granted an interim (urgent) order for the appointment to her
of the Public Guardian as guardian and Public Trustee as administrator, so that Liz
could be moved to a nursing home. Neither the care provider nor the Tribunal were
aware that Liz’s husband Albert had been appointed under an enduring power of
attorney. Albert seeks representation at the final hearing.
Having inspected the enduring power of attorney document and confirmed that it
has been validly executed, contains no errors on its face and gives Albert authority
to make decisions in relation to Liz’s housing and treatment and legal matters, the
lawyer decides he can act for Liz in the proceedings and take instructions from
Albert. The lawyer sends a copy of the enduring power of attorney document
to the guardian, administrator and Tribunal registry. Once the guardian and
administrator are aware of the enduring power of attorney, their powers are
suspended and the Tribunal initiates a review of their appointment. At the hearing,
the Tribunal revokes the interim appointments, as Albert has authority to make the
relevant decision and has been acting honestly and diligently.
For more information about the order of priority for substituted decision makers,
see Focus on page 43.
122 Powers of Attorney Act 1998 (Qld) ss 109A, 113. 41

(c) Where there is an appointed guardian, administrator or litigation guardian
Where the lawyer becomes aware that a guardian, administrator or litigation
guardian has been appointed to the client, the lawyer should review the
terms of the document effecting that appointment to ensure that:
(i) the appointment is still in force; and

(ii) the decision to be made falls within the scope of the appointment.
This will allow the lawyer to determine whether it is the client or the
guardian or administrator that has the power to make the particular
decision. If the guardian or administrator has the power to make the
decision, and is also appointed for legal matters, the lawyer must take
and act on the instructions of the guardian or administrator
Focus: Scope of guardian’s or administrator’s authority

Under the Guardianship and Administration Act 2000 (Qld), a guardian is
appointed for personal matters and an administrator is appointed for financial
matters.
A personal matter is defined as relating to the adult’s care and can include
accommodation, employment, education, health care and legal matters, but
specifically excludes legal matters relating to the adult’s financial or property
matters.
A financial matter is defined as a matter relating to the adult’s financial or

property matters, which includes legal matters relating to the adult’s financial
or property matters.
For legal matters not involving finances or property, lawyers will obtain
their instructions from the appointed guardian. For all other legal matters,
instructions properly come from the administrator.
Where a guardian is appointed for a personal matter or an administrator is

appointed for a financial matter but the appointment does not extend to legal
matters, the guardian or administrator cannot instruct the lawyer until their
appointment is extended to include legal matters. This can be done by applying
to the Tribunal for an urgent interim order to extend the appointment to legal
matters.
(d) Duty to take into account the wishes of the principal

Even if it is the substituted decision maker that has power to make the
decision, the substituted decision maker is required to:123
(i) give the person to whom they are appointed the necessary support,
access to information and opportunity to participate in decisions
affecting their life;
(ii) take the wishes of the person to whom they are appointed into
account to the maximum extent possible; and(iii) exercise their
powers in the way least restrictive of the rights of the person to
whom they are appointed.
123 See, eg, Guardianship and Administration Act 2000 (Qld) s 34(1), sch 1 general principle 7; Powers of
Attorney Act 1998 (Qld) s 76, sch 1 general principle 7.
42
If the lawyer suspects that the substituted decision maker is breaching
their duties to the client, the lawyer may refuse to act on their
instructions. But the lawyer may also need to take action to protect
the client’s best interests. For example, by making an application to the
Tribunal or a relevant court or making a complaint to the Office of the
Public Guardian and requesting that it investigates. Ideally, such action
will only be taken with the permission and on behalf of the principal.
Intervention through application to the Tribunal or the courts can only
be initiated by the lawyer on their own behalf where the lawyer has
standing under the relevant legislation. (See Chapters 7.4 and 7.5 below
for further discussion.)
Focus: Order of priority for substituted decision makers

The order of priority where there is both an appointed guardian or
administrator and an enduring power of attorney is set out in sections 22 to 25
of the Guardianship and Administration Act 2000 (Qld).
Where the Tribunal knows of the attorney and appoints a guardian or

administrator, the attorney may only exercise power to the extent authorised
by the Tribunal.
Where the Tribunal is unaware of the attorney and appoints a guardian or

administrator, once the guardian or administrator becomes aware of the
attorney, the guardian or administrator must advise the Tribunal in writing of
the existence of the enduring power of attorney as soon as possible and the
guardian’s or administrator’s powers are suspended pending review by the
Tribunal of their appointment.
An attorney who is unaware of the appointment of a guardian or administrator

does not become liable for decisions made in the proper exercise of the
attorney’s power because of the appointment of the guardian or administrator.
7.3 Will the client consent to a formal assessment of

capacity by a medical professional?
Lawyers are not qualified to conduct a medical determination of an individual’s
cognitive capacity.124 In situations of doubt, it may be appropriate for a lawyer
to request a formal capacity assessment from a medical professional with
experience in assessment of cognitive capacity.125
(a) When should a medical assessment be obtained?

While a person’s capacity is presumed, if a lawyer has doubts as
to a particular client’s ability to give lawful, proper and competent
instructions, the QLS recommends obtaining a medical assessment. 126

126 Queensland Law Society, ‘I have doubts about my client’s capacity – what should I do?’ (2013) Queensland
Law Society Ethics Centre, [2] <http://ethics.qls.com.au/content/faq/doubts-client-capacity>. See below
for more detailed information on obtaining a medical assessment and the circumstances in which a
lawyer can compel a client to undergo such an assessment.
43
A medical assessment should only be sought after fully informed
consent is obtained from the client.127 This a sensitive issue and should
be carefully considered before tactfully suggesting it to the client.128
A suggestion that the client has lost capacity to make his or her own
decisions may offend or anger the client, who may subsequently be
less cooperative with the lawyer. The specific legal need should be
distinguished from any offensive personal inferences that may be drawn
from the suggestion.
While obtaining a client’s consent for such an assessment may be

difficult, it is important to highlight to the client that the assessment
is largely for his or her benefit: ‘it is in their interests to have that
confirmation of capacity as evidence to meet any later challenge to the
validity of the transaction or the act the subject of the instructions.’129
Lawyers do not have the authority to compel a client to undergo a
medical assessment.130
(b) What if the client refuses to consent to the assessment?

Where a client refuses an assessment of capacity and doubt still remains
as to their capacity, the lawyer is placed in a difficult position.
It is recommended that the lawyer revisit the opportunity to obtain a

medical assessment with the client where:
(i) after a time or on a change of circumstances, initial concerns as

to lack of capacity in the context of the contemplated instructions
remain;
(ii) other options listed in this Chapter have been fully explored and
rejected, or are not available;
(iii) the possible consequences of being unable to act further on the
client’s behalf has been fully explored with them.131
If consent is still not forthcoming, the lawyer will need to consider
whether they can continue to act.
(c) Who should you obtain the medical assessment from, and what do you
need to tell the medical professional?
It is important to ensure that a formal assessment is obtained from a
professional specifically qualified to assess cognitive capacity.
There are various medical professionals whose role is to undertake

capacity assessment and they use various methods and tools to
complete this task. The lawyer needs to consider the client’s particular
circumstances and their disability or impairment before making a referral
to an appropriate professional.132 For instance, persons with mental
illness should generally be assessed by psychiatrists, whereas elderly
persons should generally be assessed by geriatricians.

129 Queensland Law Society, above n 126, [2].
132 Law Society of New South Wales, above n 64, 13 (which includes a useful list of types of professionals
that may be able to carry out a capacity assessment).
44
Often a client may be more willing to submit to a medical assessment
by their general practitioner. Moreover, the client’s general practitioner,
particularly if they have a long-term relationship with the client, may
be in a better position to properly assess the client’s capacity.133 On the
other hand, general practitioners often have an interest in maintaining
a therapeutic relationship with the client, meaning they are less likely
to find that the client has impaired capacity. If the general practitioner
does not have a long-term relationship with the client, they may not
be suitably qualified to assess the client’s capacity, but may be able to
recommend an appropriate professional to obtain an assessment from.
Given the fact that capacity is decision-specific, the medical professional

should be informed in detail of the particular purpose of the assessment,
the nature of the decisions the client has to make and the relevant legal
test that must be satisfied.134 An example referral letter from a lawyer to
a medical professional is contained in Schedule 4.
Alternatively, if it is anticipated that an application to the Tribunal will

eventually be made for the appointment of a guardian or administrator,
the medical professional may be asked to complete the Tribunal form
entitled ‘Report by Medical & Related Health Professional’. It is still
important to inform the medical professional of the specific decision the
client seeks to make and any other relevant information.
(d) What do you do after a medical assessment is obtained?

It is important to acknowledge that while a completed capacity
assessment by a medical professional can be persuasive in forming an
opinion regarding the client’s capacity, it is still only a clinical opinion and
must be distinguished from a legal determination of capacity.135
The lawyer must use their professional judgment in considering the

evidence and deciding whether the client has capacity. Alternatively the
capacity assessment could be used as a basis for starting discussions
involving intervention and treatment with the client and their family.136
The lawyer may form the opinion that the client requires non-legal
support and that with such support the client may have the capacity to
make the relevant decision and provide the lawyer with lawful, proper
and competent instructions. In such cases, the lawyer should consider
referring the client to an agency that will provide assistance. Examples
of non-legal support include local health area services, advocacy
services and government organisations. Lawyers should contact their
local community legal centre for an up-to-date list of non-legal support
agencies.137

134 Law Society of New South Wales, above n 63, item 6.
136 Ibid 9.
137 A list of community legal centres is available on the Queensland Association of Independent Legal
Services Inc website <http://www.qails.org.au/>. 45
Case Study: Opinions of medical professionals
in practice
Alexandra is 75 years old and lives in a locked dementia ward of a hospital.
She calls a community legal centre and says that she has been diagnosed with
Alzheimer’s disease but doesn’t believe she is ill. Lawyers from the community
legal centre attend upon Alexandra at the hospital. She is alert, aware of her
surroundings, understands why and how she is in hospital and provides the
lawyers with logical and coherent instructions that she wishes to leave the
ward and return home.
On reviewing Alexandra’s medical records, the lawyers discover that she was
diagnosed with Alzheimer’s disease six years ago and that the diagnosis has
been confirmed recently by senior doctors on multiple occasions. The lawyers
meet with Alexandra on two further occasions, at which times she continues to
display high levels of cognitive function.
Despite the medical opinions in Alexandra’s records, the lawyers reach the
conclusion that Alexandra has the capacity to apply to the Tribunal for a
declaration of capacity and to make decisions in relation to her health care
and accommodation. As such, the lawyer’s are able to act on Alexandra’s
instructions. At the Tribunal hearing, the Tribunal orders an independent
medical review of Alexandra. The review concludes that Alexandra has capacity
and the Tribunal grants the declaration.
7.4 Can a substituted decision maker be appointed?

If a client is incapable of providing instructions, and no other person has formal
authority to provide instructions on the client’s behalf, it may be appropriate
for a guardian, administrator or litigation guardian to be appointed who can
stand in the client’s place and ensure their best interest are protected.138 An
application for such an appointment requires an investigation of the client’s
capacity and, even if an appointment is not made, can result in a binding
decision on the client’s capacity for a particular matter.
It is preferable if the client themselves, or a family member, friend, social

worker or health care professional makes the application. However, lawyers
must be careful not to breach their duty of client confidentiality or waive
legal professional privilege in discussing or providing information to another
person about a client’s diminished capacity. Theoretically, a lawyer is able to
make an application to the Tribunal or a court for a substituted decision maker
to be appointed to their client. However, this should be a last resort, as there
are complex ethical issues involved when a lawyer makes such an application
(which are addressed in further detail in Chapter 7.5).

46
Further, a lawyer must satisfy the relevant standing test before they can apply to
a court to have a litigation guardian appointed to their client,139 or apply to the
Tribunal for a guardian or administrator to be appointed to their client.140 In the
latter case, the lawyer must show that they are an ‘interested person’, meaning
that they are a person who has ‘a sufficient and continuing interest in the
[client]’.141 The Tribunal and its predecessor have held that an interested person
‘must have an ongoing concern for the welfare of the adult’ in relation to whom
the application is made; 142 they must have ‘an interest necessarily connected
with the adults [sic] proper care and protection’.143
On this basis, it has been held that the solicitor for one party to court
proceedings cannot bring an application for a guardian or administrator to be
appointed to the opposing party, because the solicitor is concerned not for the
welfare of the opposing party but to further the interests of their own client by
expediting the resolution of the litigation.144 Likewise, the director of a company
involved in proceedings against an individual cannot bring an application
against the individual because the director’s interest is not continuing (in that it
is limited to resolution of the proceedings) and ‘is tainted as he is in a position of
conflict.’145
Conversely, the Tribunal has held that step-children could bring an application
against their step-father in relation to their step-father’s capacity to continue
to conduct proceedings against them, because they had continuing familial
relations, common corporate business interests and genuine concern for the
step-father and his family.146
139 In Queensland courts and the High Court, the rules do not specify who may apply for a litigation guardian
to be appointed for a party: Uniform Civil Procedure Rules 1999 (Qld) r 95; High Court Rules 2004 (Cth)
r 21.08. In the Federal Circuit Court, the rules state that only a party can request the appointment of a
litigation guardian: Federal Circuit Court Rules 2001 (Cth) r 11.11(1). In the Family Court, the rules merely
state that ‘a person’ may apply for a case guardian to be appointed for a party: Family Law Rules 2004
(Cth) r 6.10(1). However, a note to that rule provides: ‘An application in relation to a case guardian may
be made by a party or a person seeking to be made the case guardian or by a person authorised to be a
case guardian.’ In the Federal Court, the rules state that only a party or an ‘interested person’ may apply
for an order appointing a litigation representative for a party: Federal Court Rules 2011 (Cth) r 9.63(1). An
‘interested person’ of a ‘mentally disabled person’ is the person’s ‘guardian’, which is defined to mean a
person entrusted under a Commonwealth, State or Territory law with the care and management of the
person or their estate: see sch 1 (Dictionary).
140 Guardianship and Administration Act 2000 (Qld) s 12(3).
141 Ibid sch 4.
142 Re MAD [2007] QGAAT 56 (28 August 2007) [24].
143 Re EEP [2005] QGAAT 45 (24 August 2005) [15].
144 Re MAD [2007] QGAAT 56 (28 August 2007) [25].
145 Re EEP [2005] QGAAT 45 (24 August 2005) [15].
146 Re BRT [2012] QCAT 128 (20 March 2012) [26]-[28].
47
Case Study: Appointing a substituted decision maker
Charlie has an acquired brain injury and severe epilepsy. An administrator is
appointed to manage Charlie’s financial affairs. He clearly lacks capacity and
the administrator refuses to be involved in the matter.
As Charlie’s capacity is impaired, the lawyer must inform him that she cannot
accept his instructions unless he has a litigation guardian. As the administrator
refuses to act as litigation guardian, the lawyer informs Charlie someone
must agree to be his litigation guardian. Margaret states that she would be
willing to act as litigation guardian and Charlie agrees. Once Margaret files
her consent to act as litigation guardian with the Court, the lawyer can act on
her instructions, taking into account Charlie’s wishes to the maximum extent
possible. In some cases, the Court has been known to waive the requirement
for Margaret to act by a solicitor.
7.5 Ethical complexities for lawyers seeking to have a

substituted decision maker appointed to their client
Even if a lawyer has standing to apply to a court to have a litigation guardian
appointed to their client or to apply to the Tribunal for a guardian or
administrator to be appointed to their client, they still have legal and ethical
duties to follow their client’s lawful, competent and proper instructions, act in
the best interests of their client and not disclose confidential information of the
client without consent (subject to limited exceptions). These duties fetter the
ability of a lawyer to make such applications. Applying for a substituted decision
maker to be appointed to a person ‘is a very serious thing because it deprives the
person of their fundamental civil rights under the common law’.147
Where a client is not averse to their lawyer making such an application, then
there is no real legal or ethical issue for the lawyer. An issue only arises where
the client is hostile to the lawyer making such an application and instructs the
lawyer not to do so.148
Prima facie, taking such steps without or contrary to a client’s instructions

‘should be unpalatable to the lawyer.’149 However, the courts in New South
Wales have recognised that there are limited circumstances in which a lawyer
may be able to make such a request or application and still comply with their
ethical duties. These circumstances are an ‘important qualification’ to the
lawyer’s duties.150
147 Goddard Elliott (a firm) v Fritsch [2012] VSC 87 (16 March 2012) [553] (Bell J).
148 Justice Paul Brereton, ‘Acting for the incapable – a delicate balance’ (2012) 35 Australian Bar Review 244,
247. For a detailed discussion of the ethical considerations involved, refer to Wells, above n 22, 39-40.
150 Law Society of New South Wales, above n 63, item 9; cf Wells, above n 22, 39.
48
Focus: Applying for the appointment of a guardian
or administrator
An application for the appointment of a guardian or administrator is made to
the Tribunal by way of a Form 10 ‘Application for Administration/Guardianship
Appointment or Review’. Proposed guardians or administrators (except for the
Public Guardian or Public Trustee) will need to sign relevant pages of the form
witnessed by a justice of the peace, commissioner for declarations or solicitor.
The Form 10 should be accompanied by a ‘Report by Medical & Related Health

Professional’, a standard form to be filled in by a medical professional giving
their assessment of the client’s capacity for the matter. If there is difficulty
in obtaining this report, then a written explanation of the reasons for this
should accompany the Form 10 (otherwise the Tribunal will be very reluctant
to set the matter down for hearing). Other expert reports may be relevant or
sufficient but should first be discussed with the Tribunal registry.
Once the application is lodged, a hearing date will be set. The applicant is
expected to attend the hearing. The person the subject of the application and
any proposed guardians or administrators should also attend the hearing.
At the end of the hearing, an appointment may be made for all or specific
matters, and for a set period of time.
If an appointment needs to be made as a matter of urgency, the relevant forms

can be lodged and an interim order appointing a guardian or administrator can
be made on the papers.
McD v McD was an application by a lawyer for the equivalent of a guardian and
administrator to be appointed to their client. Powell J granted the lawyer leave
to substitute the client’s brother as the applicant in the application. His Honour
noted that while the lawyer was clearly acting in what the lawyer considered
to be in the best interests of his client by commencing the proceedings, it was
inappropriate for the lawyer to continue as the applicant.151 His Honour stated
that the preferable course was for the lawyer to encourage the client’s family,
friends or a trustee company to commence such proceedings:152
[I]t was, in my view, undesirable that [the lawyer] should thus put himself in an adversary
position in relation to [his client] who, if her condition could be cured or controlled, might
wish to oppose the relief sought in the proceedings. While it may be that, on occasion,
situations may arise in which there is no person, other than the intended defendant’s own
solicitor, who is either able, or willing, to commence proceedings for the appointment of a
committee or a manager of the intended defendant’s property and affairs, I believe that, as
there is no limitation upon the persons who may bring such proceedings, such cases ought
to be very rare, indeed. Rather, so it seems to me, where a person’s own solicitor believes
that an application should be made for the appointment of a committee or manager of
his client’s property and affairs, and no member of the client’s family is available or willing
to make such an application, the preferred course for the solicitor to adopt is, as was done
in Re An Alleged Incapable Person (1959) 77 WN (NSW) 156, to invoke the good offices of a
friend of the client, or even of one of the trustee companies.153
151 [1983] 3 NSWLR 81, 84.

152 Ibid (emphasis added).
153 In Re an Alleged Incapable Person (1959) 77 WN (NSW) 156, Myers J held that a trustee company with no
interest in a particular person could make an application under section 39 of the Mental Health Act 1958
(NSW) for an order (equivalent to the appointment of a guardian and administrator). His Honour noted
that the application was made by the trustee company because no next-of-kin thought fit to make the
application and that the application was ‘entirely due to the good offices of the gentleman who was her
solicitor until she became incapable of continuing his retainer.’
49
An appeal against the granting of a similar application was dismissed in
R v P. 154 In that case, the Court of Appeal noted that such applications involved
the possibility of the lawyer having a conflict of interest and duty as well as
the possible unauthorised disclosure of confidential information.155 The Court
noted that McD was authority for the proposition that such applications should
not be brought by lawyers against their clients ‘at least if there is any reasonable
alternative.’156 However, Hodgson JA emphasised that this was not an absolute
rule and that there may be circumstances in which a lawyer may make such an
application against their client:157
McD did not purport to impose any absolute rule against solicitors bringing such an
action, and I do not think this Court should suggest that there is an absolute rule against
such actions being brought. The bringing of such actions is extremely undesirable because
it involves the solicitor in a conflict between the duty to do what the solicitor considers
best for the client and the duty to act in accordance with the client’s instructions; and
also because of a possible conflict between the solicitor’s duty to the client and the
solicitor’s interest in continuing to act in the proceedings in question and to receive fees
for this.
In relation to disclosure of confidential information, Hodgson JA stated:158

There remains the question whether the respondent has misused confidential
information in bringing the proceedings, upon the basis of general law principles about
the obligations of persons having confidential information, quite apart from restrictions
on disclosing or giving in evidence of matters the subject of legal professional privilege. In
relation to these principles, in my opinion there is room for the adoption of the approach
taken in cases such as Church v Price, to the effect that the solicitor’s concern for the
interest of the client, so long as it is reasonably based and so long as it results in no
greater disclosure of confidential information than absolutely necessary, can justify the
bringing of proceedings and such disclosure of confidential information as is absolutely
necessary for the purpose of such proceedings.
In the later case of P v R, Barrett J granted a lawyer’s application for the

equivalent of a guardian and administrator to be appointed to their client on the
basis that the client clearly had impaired capacity but had no family members
willing to make the application, no social worker and no friends from church
sufficiently close to make the application.159 Barrett J held that before a lawyer
can make such an application, they must take ‘adequate steps to find some
alternative person to bring the proceedings’ or such steps must be able to be
shown to ‘have been fruitless.’160 His Honour concluded that because ‘there
being no reasonable and apparently available alternative’ person to make the
application:161
That amounts to a special circumstance warranting the making of orders on the
application of a solicitor, he being a person who has gained a close appreciation of the
defendant’s circumstances and difficulties generally in the course of dealing with her
personal injuries claim.
154 (2001) 53 NSWLR 664 (Court of Appeal).

155 Writing extra-curially, Justice Paul Brereton has also suggested that the lawyer’s duty to the court may
justify the lawyer in making such a request or application: Brereton, above n 148, 250.
156 (2001) 53 NSWLR 664, 666 (Mason P), 683 (Hodgson JA), 684 (Ipp AJA).
157 Ibid 683 (emphasis added).
158 Ibid 683-4. An alternative ground for disclosure may also be provided by rule 9.2.5 of the Australian
Solicitors Conduct Rules, which provides that a solicitor may disclose confidential client information
for the purpose of preventing imminent serious physical harm to the client or to another person:
Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012) r 9.2.5; Legal Profession
(Australian Solicitor’s Conduct Rules) Notice 2012 (Qld).
159 [2003] NSWSC 819 (9 September 2003) [77]-[80].
160 Ibid [69], [81].
161 Ibid [81].
50
While a lawyer may not be able to apply for a litigation guardian, guardian or
administrator to be appointed to their client without breaching their duties
to the client, this does not mean that lawyers are restricted from bringing
the issue of their client’s capacity to the attention of a court or Tribunal in
proceedings already on foot. The courts have shown an increased willingness
to entertain applications by lawyers in relation to the capacity of their clients
(particularly when the client has already commenced litigation) on the basis of
the lawyer’s paramount duty to the court and the administration of justice. For
instance, in Till v Nominal Defendant the Supreme Court of Queensland stayed
compensation proceedings on the application of the plaintiff’s barrister and
subsequently heard an oral application by the plaintiff’s solicitors to have the
plaintiff’s capacity assessed by the Tribunal for the purposes of determining
whether a guardian should be appointed to the plaintiff for the litigation.162
McMeekin J granted the application, ordered that the question of the plaintiff’s
capacity be referred to the Tribunal and stayed the court proceedings until
that issue was finalised. 163 The reasons of McMeekin J did not address the
ethical issues associated with the fact that the application was brought by the
plaintiff’s lawyers.
More recently, Bell J emphasised in Goddard Elliott (a firm) v Fritsch that:

the primary responsibility of a lawyer is to be satisfied the client has the mental capacity
to instruct. Doubts about this issue in the mind of the lawyer can also have important
consequences for the conduct of legal proceedings. If the issue cannot be resolved to
the reasonable satisfaction of the lawyer, as occurred in the present case, the lawyer
must raise the issue with the court. It is the court which has the final responsibility to
determine the issue.164
His Honour also held:

Where the client does not have [the mental capacity to participate in the proceeding and
to instruct], the lawyer does not have the authority to represent them in the proceeding,
except for certain limited purposes, most particularly perhaps for the purpose of an
inquiry into that question. I say perhaps because they are not really representing the
client in that process, but rather assisting the court as an officer of the court.165
This reasoning was followed in Pistorino v Connell, where Dixon J granted an

ex parte application made by the solicitor of a plaintiff for a litigation guardian
to be appointed to the plaintiff, despite the fact the application was opposed
by the plaintiff and involved the disclosure of confidential communications
between the solicitor and plaintiff that were subject to legal professional
privilege.166 His Honour emphasised that lawyers, as officers of the court with
a fundamental duty to the court, had a duty to raise the issue of their client’s
capacity with the court.167 While Dixon J did not expressly address the issue of
the solicitor’s duties to the client, his Honour implied that the client’s interests
could be protected by:
(a) the solicitor making the application ex parte (provided there are no other
persons interested or affected by the application);
(b) the court hearing the matter in camera; and
162 [2010] QSC 121 (22 April 2010) [1], [6].

163 Ibid [27]-[29].
164 Goddard Elliott (a firm) v Fritsch [2012] VSC 87 (16 March 2012) [568].
165 Ibid [549].
166 [2012] VSC 438 (25 September 2012) [2]-[4].
167 Ibid [4]-[6]. 51
(c) the court making orders that the confidential material placed before it for
the purposes of the application along with the transcript of proceedings
be sealed up, kept confidential and not disclosed to anyone without the
leave of the court.168
However, given the conflict of duties and interests referred to by the courts,
it may be difficult for a lawyer to continue to act for the client following the
lawyer’s application for a substituted decision maker to be appointed to their
client.
In summary, the authorities on this issue are unsettled. On the basis of the
conservative approach adopted by the New South Wales courts, a lawyer should
not breach their legal and ethical duties if:
(a) they apply to the Tribunal for a guardian or administrator to be appointed

to their client, with their client’s consent;
(b) in the absence of such consent, they encourage the client’s family, friends,
advocate or a trustee company to apply to the Tribunal for a guardian or
administrator to be appointed to their client (that such actions would not
breach the lawyer’s duty of confidence would appear to be a necessary
implication of the reasoning in the authorities on this issue); or
(c) if no one is willing to apply and the lawyer has standing, they apply to the
Tribunal for a guardian or administrator to be appointed to their client
provided that:
(i) the lawyer has taken adequate steps to ensure there is no other
reasonable alternative person to make the request or application;
(ii) the lawyer has gained a close appreciation of the client’s
circumstances and difficulties;
(iii) the lawyer’s concern for the client has a reasonable basis; and
(iv) only confidential information that is absolutely necessary for the
making of the request or application is disclosed.
A similar approach should apply to the appointment of litigation guardians.
However, where the client has already commenced proceedings, on the basis
of the more lenient approach adopted by the Queensland and Victorian courts,
a lawyer should not breach their legal and ethical duties if they apply to the
court for an order that their client’s capacity be assessed by the Tribunal or for a
litigation guardian to be appointed to their client provided that the application
is made in a way that ensures that confidentiality and privilege are maintained.
In either case, however, the lawyer may need to withdraw as legal representative
for the client in the substantive matter due to the arising conflict of interest.
168 Ibid [10], [13], [15]. Dixon J made such orders in the application before him.
52
7.6 Should I cease to act?
As already mentioned, determining the most appropriate option is akin to a
risk assessment process. The decision as to whether to terminate the client
retainer is a difficult one, and each case will need to be considered in light of
the particular context and circumstances. Where there is a very high risk that a
client will suffer serious detriment if the lawyer ceases to act, it is possible that
intervention (such as seeking appointment of a substituted decision maker)
may be warranted. However, if the risk to the client is very low, then ceasing to
act may be more appropriate than seeking an intrusive intervention against the
wishes of the client.
A lawyer may terminate a retainer for just cause and on reasonable notice.169
What constitutes just cause is not defined,170 but the inability of a client to
give lawful, competent and proper instructions would arguably constitute ‘just
cause’.171 The Australian Solicitors Conduct Rules do not specify what ‘reasonable
notice’ is; however, where the lawyer decides this option is the most appropriate
in the circumstances it is recommended that a letter be sent to the client
outlining:172
(a) the reason(s) for ceasing to act;

(b) the direct and indirect consequences for the client of this; and
(c) any options open to the client (including the availability of any relevant
non-legal support).
A sufficient period of time should be allowed for the client to consider the letter
prior to terminating the retainer.
Alternatively, the lawyer may consider that although the client is not currently
able to give instructions, there is potential in the future for the client to either
have capacity to do so (for example, through improvement in mental state by
the client accepting medication or support), or to agree to accept intervention
such as the appointment of a substituted decision maker. Staying with the client
in these circumstances preserves the lawyer-client relationship, which may be
invaluable to a client where the lawyer has acted as a trusted advisor over a long
period of time. Considering the ethical duties imposed on lawyers, this may be
the only appropriate course of action as ‘the just lawyer does not abandon her
client, but stands with him unless or until the client says otherwise.’173
170 Law Council of Australia, Australian Solicitors’ Conduct Rules 2011 and Consultation Draft Commentary
(19 October 2012) <http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/docs-2000-
2099/2012October19-ConsultationDraftCommentary.pdf> 22.
171 Law Society of New South Wales, above n 63, item 8. In England and Wales, the common law and
professional conduct rules allow termination for ‘good reason’, which has been held to be ‘a fact-sensitive
question’: Richard Buxton (a firm) v Mills-Owen [2010] 4 All ER 405, 417. In that case, the Court of Appeal
also endorsed the guidance notes to the professional conduct rules which state that ‘good reason’ will
include ‘a solicitor being unable to obtain clear instructions from the client’: 418.
53
8 Who Pays the Costs
of Maximising and
Assessing Capacity?
Capacity is inexorably linked to issues of cost. If performed properly

and thoroughly, the process of maximising a client’s capacity and then
conducting a preliminary assessment of capacity may take lawyers
a significant amount of time. It may result in the lawyer incurring
higher than normal expenses and charging a higher than normal
fee (particularly if the client has agreed to time costing). If a formal
assessment of capacity by a medical professional is necessary, this will
obviously involve additional direct costs (in the form of the medical
professional’s fee) and indirect costs (in the form of the additional
consideration the lawyer must give to the medical professional’s report).
Who should pay such costs? This issue remains largely unresolved. In
the absence of any specific government financial support for persons
with doubtful or impaired capacity, the costs are currently borne by
the client by default. As Bell J noted in Goddard Elliott (a firm) v Fritsch,
‘[t]here is no duty psychiatrist stationed at every court just in case
they are needed.’174 In rare cases, the courts or Tribunal might order
an opposing party to pay the costs of a formal assessment of capacity
by a medical professional, particularly where the opposing party
commenced the application and stands to gain from a declaration of
impaired capacity. For instance, in BRT, the Tribunal held:175
As these proceedings are not being brought by BRT it is unreasonable to
expect that he would meet the costs of the psychiatric examination. As a
result the Tribunal will order that the applicants pay the psychiatrist’s fees.
Where costs are awarded as a result of successful litigation, a

client may recover the costs that are ‘necessary or proper for the
attainment of justice’ if costs are to be assessed on a standard
basis,176 or costs ‘reasonably incurred and of a reasonable amount’
if costs are to be assessed on an indemnity basis.177 In both cases,
professional fees properly charged by the client’s lawyer in taking
the client’s instructions will be partially although not completely
recoverable. These costs may include costs relating to any additional
time spent in the taking of instructions because of the client’s
impaired capacity.
174 [2012] VSC 87 (16 March 2012) [565].

175 BRT [2012] QCAT 128 (20 March 2012) [33].
176 Uniform Civil Procedure Rules 1999 (Qld) r 702.
177 Ibid r 703.
54
Even where the client must bear the costs, there are some limits to the client’s
liability. For instance, Medicare benefits or Legal Aid payments may cover
some (but very rarely all) of the costs of a formal assessment of capacity by a
medical professional.178 Further, there are restrictions on the quantum of fees
that lawyers can charge their clients for maximising and assessing capacity.
Charging clients excessive legal costs can amount to professional misconduct or
unsatisfactory professional conduct.179 It may also be a breach of the fiduciary
obligations owed by lawyers to their clients.180
For example, in Legal Services Commissioner v Towers, de Jersey CJ held that a

solicitor who acted under a power of attorney for a client with impaired capacity
had engaged in professional misconduct by grossly excessive charging.181 The
Chief Justice emphasised that once a client is incapacitated, lawyers should
ensure that their charges will ‘withstand rigorously independent scrutiny.’182 His
Honour drew particular attention to the fact that the solicitor’s:
approach included charging $300 per hour for attendances not involving the delivery
of professional services: for example, shopping for Mr White and conversing with him.
It is the [solicitor’s] taking advantage of the incapacity of Mr White for his own benefit
together with the extent of the over-charging which warrants this being characterised as
professional misconduct.183
This case would suggest that to the extent steps taken in maximising and
assessing capacity do not involve the delivery of professional services, lawyers
should carefully consider how they charge for such activities.
178 Legal Aid Queensland, Grants Handbook (10 April 2013) <http://www.legalaid.qld.gov.au/about/Policies-
and-procedures/Grants-handbook/What-do-we-fund/Nature-and-extent-of-funding/Civil-law/Expert-
reports-in-civil-law-matters/Pages/default.aspx> see section entitled ‘Expert reports in civil law matters’.
179 Legal Profession Act 2007 (Qld) s 420(1)(b).
180 See, eg, Law Society of NSW v Foreman (No 2) (1994) 34 NSWLR 408, 435-6 (Mahoney JA).
181 [2006] LPT 3 (22 May 2006) 2-3.
182 Ibid 3.
183 Ibid.
55
9 Where Can I Obtain Further
Guidance?
Given the potential ethical complexities of deciding which option

may be most appropriate where a client’s capacity is in doubt, it may
be useful for the lawyer to utilise the ethics guidance service offered
by the QLS Ethics Centre. The Centre provides a confidential face-to-
face or telephone service, which is free for all QLS members.
A solicitor who discusses the client’s circumstances with a QLS ethics

solicitor will not breach their duty of confidence, as the Australian
Solicitors Conduct Rules provide that a solicitor may disclose
confidential client information in a confidential setting for the sole
purpose of obtaining advice in connection with the solicitor’s legal or
ethical obligations.184
Contact details for the QLS Ethics Centre are as follows:
Telephone: 07 3842 5843

Email: [email protected]
184 Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012) r 9.2.3; Legal
Profession (Australian Solicitors Conduct Rules) Notice 2012 (Qld).
56
Schedule 1
Indicia of Impaired Capacity
The following circumstances could (but do not necessarily) indicate

that a client lacks capacity:185
(a) the client is elderly or has a disability or impairment such as:

(i) dementia;
(ii) cognitive impairment (such as acquired brain inquiries
and neurodegenerative diseases);
(iii) intellectual disabilities; or
(iv) mental illness (such as schizophrenia, depression and
bipolar disorder);
(b) the client is in hospital or a nursing home when instructions
are taken;
(c) the client has difficulty recalling things, has a bad memory or
is forgetful;
(d) the client cannot perform simple calculations;
(e) the client lacks mental flexibility and has difficulty grasping
new ideas;
(f) the client is disoriented (including losing things or getting lost)
or repeats themselves;
(g) the client is anxious about decision making or is upset by
being unable to manage tasks;
(h) the client has continuing difficulties communicating or a
limited ability to interact with the lawyer (including being
unable to repeat advice or ask questions of the lawyer);
(i) the client has changed lawyers recently or frequently or has
radically changed their instructions recently;
185 Endicott, above n 18, 1-2; O’Neill and Peisah, above n 8, 4-5; Hamilton Cockburn, above n
95, 17; Law Society of New South Wales, above n 63, 4; Legal Aid Queensland, above n 58,
206-7; Legal Services Commissioner v Ford [2008] LPT 12, 21-22 (Fryberg J).
57
(j) third parties accompany the client and do not give the client an
opportunity to speak for themselves;
(k) the person facilitating contact between the client and the lawyer stands
to benefit from any decision made by the client;
(l) the lawyer has a sense that ‘something is different’ because there has
been a change in the client’s presentation, mood or sociability; and
(m) the lawyer is on notice of issues regarding the client’s mental health or
cognitive function (particularly where information is volunteered by a
third party).
58
Schedule 2
Capacity Tests Applicable to
Different Practice Areas
1 Entry into a contract

Capacity to contract depends on the nature and complexity of
the particular contract in question. The High Court emphasised in
Gibbons v Wright:186
The law does not prescribe any fixed standard of sanity as requisite for the
validity of all transactions. It requires, in relation to each particular matter
or piece of business transacted, that each party shall have such soundness
of mind as to be capable of understanding the general nature of what he is
doing by his participation.
Later, their Honours referred to various English authorities and stated

that it:
appears to us to be that the mental capacity required by the law in respect
of any instrument is relative to the particular transaction which is being
effected by means of the instrument, and may be described as the capacity
to understand the nature of that transaction when it is explained. As
Hodson LJ remarked in [Estate of Park], ‘one cannot consider soundness of
mind in the air, so to speak, but only in relation to the facts and the subject-
matter of the particular case’ [(1954) P 112, 136]. Ordinarily the nature of
the transaction means in this connection the broad operation, the ‘general
purport’ of the instrument; but in some cases it may mean the effect of a
wider transaction which the instrument is a means of carrying out: Manches
v Trimborn [(1946) 174 LT 344, 345].
2 Making a gift
Capacity to make a gift to another is governed by the same test as
the capacity to contract. In accordance with the High Court’s reasons
in Gibbons v Wright (discussed in relation to contracts above), the test
for capacity will depend on the nature and timing of the particular
gift. As Endicott explains, this means that in some cases the test for
making a gift may be the same as that required to make a will or
other testamentary disposition:187
186 (1954) 91 CLR 423, 437.

187 Endicott, above n 18, 10.
59
Where the subject matter and value of the gift are trivial in relation to the donor’s other
assets, a low degree of understanding will suffice. Where the effect of the gift is to
dispose of the donor’s only asset of value and for all practical purposes to pre-empt the
terms of the donor’s will, then the degree of understanding required should be the same
as required to make a will. In addition when an elderly person makes a substantial gift,
there must be an understanding of both the immediate effect that the disposing of the
asset could have on the donor (Centrelink) and the longer term effect that reduction of
assets could have on the person for the rest of his or her life (accommodation options).
3 Making a will or other testamentary disposition

In order to have testamentary capacity, a testator must satisfy the test
established in the seminal case Banks v Goodfellow:188
It is essential to the exercise of such a power that a testator shall understand the nature
of the act and its effects; shall understand the extent of the property of which he is
disposing; shall be able to comprehend and appreciate the claims to which he ought to
give effect; and, with a view to the latter object, that no disorder of the mind shall poison
his natural faculties – that no insane delusion shall influence his will in disposing of his
property and being about a disposal of which, if the mind had been sound, would not
have been made.
The test established by Banks v Goodfellow must be brought to bear on ‘existing

circumstances in modern life.’189 The adaption of the test to modern life requires
that: 190
1. The testatrix must be aware, and appreciate the significance, of the act in the law upon
which she is about to embark;
2. The testatrix must be aware, at least in general terms, of the nature, extent and value
of the estate over which she has a disposing power;
3. The testatrix must be aware of those who may reasonably be thought to have a claim
upon her testamentary bounty, and the basis for, and nature of, the claims of such
persons;
4. The testatrix must have the ability to evaluate, and discriminate between, the
respective strengths of the claims of such persons.
The modern adaption of the Banks v Goodfellow test has been accepted in
Queensland.191
4 Making decisions about financial affairs

There is no universally employed test for capacity in relation to making decisions
about financial matters. To the extent that making decisions about financial
affairs involves entering into a contract, making a gift or making a will or other
testamentary disposition, the relevant tests for capacity have already been
discussed. In the context of the Guardianship and Administration Act 2000 (Qld),
if a person lacks capacity for a ‘financial matter’ (the types of which are listed in
Part 1 of Schedule 2 to the Act) then an administrator may be appointed to the
person in relation to that matter.192 This test is discussed in more detail at Item
9.1 below in relation to the appointment of guardians and administrators.
188 (1870) LR 5 QB 549, 565.

189 Kerr v Badran [2004] NSWSC 735 (17 August 2004) [49].
190 Read v Carmody [1998] NSWSC 182 (23 July 1998) (Powell JA).
191 See, eg, Frizzo v Frizzo [2011] QSC 107 (12 May 2011) [23]-[24]; affd [2011] QCA 308 (1 November 2011)
[24]; Ruskey-Fleming v Cook [2013] QSC 142 (3 June 2013) [57]-[60].
192 Guardianship and Administration Act 2000 (Qld) s12(1).
60
5 Making decisions about medical treatment
5.1 Generally
Whether an adult has capacity to make decisions about medical treatment will
depend upon the nature of the medical treatment and the adult’s cognitive
capabilities. McDougall J in Hunter and New England Area Health Service v A
stated that ‘[i]n considering the question of capacity, it is necessary to take into
account both the importance of the decision and the ability of the individual
to receive, retain and process information given to him or her that bears on the
decision.’ 193 His Honour then referred with approval to the test established by
Butler-Sloss LJ in Re MB (Caesarean section):194
As Butler-Sloss LJ said in Re MB … in deciding whether a person has capacity to make
a particular decision, the ultimate question is whether that person suffers from some
impairment or disturbance of mental functioning so as to render him or her incapable of
making the decision. That will occur if the person:
(1) is unable to comprehend and retain the information which is material to the
decision, in particular as to the consequences of the decision; or
(2) is unable to use and weigh the information as part of the process of making the
decision.195
In Re Bridges,196 Ambrose J referred with approval to the decision of the English

Court of Appeal in Re T (Adult: Refusal of Treatment)197 and the decision of
Thorpe J in Re C (Adult: Refusal of Medical Treatment).198 In Re T, Lord Donaldson
MR emphasised the decision-specific nature of capacity: ‘The more serious
the decision, the greater the capacity required.’ 199 Each member of the Court
of Appeal also listed conditions or circumstances that could have an adverse
impact on a person’s capacity.200 In Re C, Thorpe J held that an adult will have
capacity to accept or reject medical treatment unless they do not sufficiently
understand the nature, purpose and effects of the proposed treatment.201 His
Lordship then stated that capacity requires the adult to:202
(a) comprehend and retain relevant treatment information;

(b) believe that treatment information (this may include believing it ‘in their
own way’); and
(c) weigh the information to arrive at a decision.
193 (2009) 74 NSWLR 88, 97-8.

194 [1997] 2 FLR 426, 436-7.
195 (2009) 74 NSWLR 88, 93.
196 [2001] 1 Qd R 574, 575-7.
197 [1993] Fam 95.
198 [1994] 1 WLR 290.
199 [1993] Fam 95, 113.
200 Ibid 112-13 (Lord Donaldson MR), 118 (Butler-Sloss LJ), 122 (Slaughton LJ).
201 [1994] 1 WLR 290, 295.
202 Ibid.
61
5.2 Involuntary treatment (under the Guardianship and Administration
Act 2000 (Qld))
Chapter 5 of the Guardianship and Administration Act 2000 (Qld) contains
provisions that authorise the involuntary treatment of adults who do not have
capacity for ‘health matters’ and ‘special health matters’ (each of which are
defined in items 4 and 7 of Part 2 to Schedule 2 to the Act). Capacity in this
context is defined to mean:203
capacity, for a person for a matter, means the person is capable of—
(a) understanding the nature and effect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
The requirements of this definition are discussed in more detail at Item 9.1
below in relation to the appointment of guardians and administrators.
5.3 Involuntary treatment (under the Mental Health Act 2000 (Qld))
A person may be involuntarily treated for mental illness under the Mental Health
Act 2000 (Qld) provided that they, among other things, ‘lack the capacity to
consent to be treated for the illness.’204 Capacity in this context is defined to
mean:205
capacity, for a person, means the person is capable of—
(a) understanding the nature and effect of decisions about the person’s assessment,
treatment, care or choosing of an allied person; and
(b) freely and voluntarily making decisions about the person’s assessment, treatment,
care or choosing of an allied person; and
Informed consent for electroconvulsive therapy and psychosurgery carry

additional requirements set out in sections 133 to 137 of the Mental Health Act
2000 (Qld).
5.4 Challenging involuntary treatment under the Mental Health Act 2000
(Qld)
The jurisdiction of the Mental Health Review Tribunal (MHRT) includes periodic
review of involuntary treatment orders and approving the administration of
electroconvulsive therapy. The MHRT’s decision may be appealed to the Mental
Health Court.
Section 8(b) of the Mental Health Act 2000 (Qld) creates a presumption of
capacity to make decisions about a person’s mental health treatment. It
provides, in particular, that ‘a person is presumed to have capacity to make
decisions about the person’s assessment, treatment and choosing of an allied
person’.
203 Guardianship and Administration Act 2000 (Qld) sch 4 (definitions of ‘capacity’ and ‘impaired capacity’).
204 Mental Health Act 2000 (Qld) s 14(1)(f).
205 Ibid sch (definition of ‘capacity’).
62
Provided the lawyer can obtain coherent instructions from the client in
relation to the conduct of proceedings before the MHRT or Mental Health
Court, evidence of the person’s impaired capacity to consent to mental health
treatment should be no barrier to legal representation. If it were, then the
presumption of capacity would be undermined, the doctor’s assessment of
capacity would take precedent over that of the MHRT’s and very
few people would be able to retain legal representation despite a legal right to
do so under the Act.206
For further discussion, see Item 9.2 below in relation to making and contesting
guardianship and administration applications below.
5.5 Executing an advance health directive

Section 42 of the Powers of Attorney Act 1998 (Qld) provides:
(1) A principal may make an advance health directive, to the extent it does not give
power to an attorney, only if the principal understands the following matters—
(a) the nature and the likely effects of each direction in the advance health
directive;
(b) a direction operates only while the principal has impaired capacity for the
matter covered by the direction;
(c) the principal may revoke a direction at any time the principal has capacity for
the matter covered by the direction;
(d) at any time the principal is not capable of revoking a direction, the principal is
unable to effectively oversee the implementation of the direction.
Editor’s note — If there is a reasonable likelihood of doubt, it is advisable for the

witness to make a written record of the evidence as a result of which the witness
considered that the principal understood these matters.
(2) A principal may make an advance health directive, to the extent it gives power to an
attorney, only if the principal also understands the matters necessary to make an
enduring power of attorney giving the same power.
Editor’s note — See section 41 (Principal’s capacity to make an enduring power

of attorney).
Further, schedule 3 to the Powers of Attorney Act 1998 (Qld) provides that:
Guidelines produced by the Office of the Public Guardian provide detailed

guidance to lawyers who act as witnesses to advance health directives.207
Failure to follow the guidelines may amount to unsatisfactory professional
conduct.208
206 See, eg, Mental Health Act 2000 (Qld) ss 328, 450.
207 Public Guardian, above n 61.
208 Legal Services Commissioner v Ford [2008] LPT 12 (22 August 2008) 22 (Fryberg J). 63
6 Making decisions about privacy
6.1 Commonwealth privacy legislation
The Privacy Act 1988 (Cth) and the Australian Privacy Principles impose
requirements that individuals must consent to the collection, use and disclosure
of certain types of information in relation to them. Consent is defined to include
express or implied consent,209 but these terms are not further defined. The
Office of the Australian Information Commissioner has issued draft guidelines
that state that consent must be:
(a) voluntary;
(b) adequately informed;
(c) current and specific; and
(d) given by a person with capacity to understand and communicate their
consent. 210
The guidelines contain the following information about capacity to consent to
the collection, use and disclosure of information:211
An individual must have the capacity to consent. This means that the individual is
capable of understanding the nature of a consent decision, including the effect of giving
or withholding consent, forming a view based on reasoned judgement and how to
communicate a consent decision. An APP entity can ordinarily presume that an individual
has the capacity to consent, unless there is something to alert it otherwise…. If an entity
is uncertain as to whether an individual has capacity to consent at a particular time, it
should not rely on any statement of consent given by the individual at that time.
A similar approach has been adopted in other binding and non-binding

guidelines previously issued by the Office of the Privacy Commissioner.212
6.2 Queensland privacy legislation

Similarly, the Hospital and Health Boards Act 2011 (Qld) states that confidential
information cannot generally be disclosed unless the person to whom the
information relates consents to the disclosure.213 The Act does not define
consent. Guidelines issued by Queensland Health in relation to the (now
repealed) Health Services Act 1991 (Qld) stated that consent must be voluntary,
informed and given by a person with capacity to do so.214 In relation to
209 Privacy Act 1988 (Cth) s 6.

210 Office of the Australian Information Commissioner, Australian Privacy Principles (APP) Guidelines (August
2013), [B.29] <http://www.oaic.gov.au/images/documents/privacy/applying-privacy-law/app-guidelines/
chapter-b-app-guidelines-v1.1.pdf>.
211 Ibid [B.46].
212 Australian Government, National Health and Medical Research Council, Office of the Privacy
Commissioner, Use and disclosure of genetic information to a patient’s genetic relatives under section
95AA of the Privacy Act 1988 (Cth): Guidelines for health practitioners in the private sector (15 December
2009) Office of the Australian Information Commissioner, 24-27 <http://www.oaic.gov.au/images/
documents/migrated/2009-12-16045841/E96%20Privacy%20Act%20(95AA).pdf>; Office of the Federal
Privacy Commissioner, Guidelines on Privacy in the Private Health Sector (8 November 2001) Office of the
Australian Information Commissioner, xi-xiii <http://www.oaic.gov.au/images/documents/migrated/
migrated/hg_01.pdf>.
213 Hospital and Health Boards Act 2011 (Qld) ss 142, 144. See also ss 63(3)(b), 132(3)(b), 197(3)(b).
214 Queensland Government, Queensland Health, Health Services Act 1991: Part 7 – Confidentiality Guidelines
(February 2012), 6 <http://www.health.qld.gov.au/foi/docs/conf_guidelines.pdf>. Note that the
Guidelines are currently under review by the Queensland Government, which warns that they should not
be relied upon as they are currently out of date.
64
capacity, the guidelines merely state that ‘[t]he individual must be capable
of understanding the issues relating to the decision, forming a view based on
reasoned judgement, and communicating their decision.’215
7 Entry into marriage

A marriage is void where one person is ‘mentally incapable of understanding
the nature and effect of the marriage ceremony’.216 The Marriage Act 1961 (Cth)
places the relevant duty on the marriage celebrant not to solemnise a marriage
if he or she ‘has reason to believe the marriage would be void’.217 This would
include where a party to the marriage does not have capacity to marry because
they are incapable of understanding the nature and effect of the ceremony.
There is no one Australian case that exhaustively explains the requirements of

this definition. Chisholm J in AK v NC held that this does not require the person
to have a detailed and specific understanding of all of the legal consequences
of marriage.218 However, Young CJ in Privet v Vovk held that this means that ‘the
person contracting the marriage must be mentally capable of appreciating that
it involves the responsibilities normally attached to a marriage.’219
Mullane J in Babich v Sokur emphasised that the Australian test requires ‘that
for a valid consent a person must be mentally capable of understanding the
effect of the marriage ceremony as well as the nature of the ceremony.’220 His
Honour favoured the view that it is insufficient for a person to have ‘a general
understanding of marriage and its consequences’; rather, the person must
understand the ‘specific consequences of the marriage that the person is about
to enter into’:221
But it is in my view significant that the legislation not only requires a capacity to
understand “the effect” but also refers to “the marriage” rather than “a marriage”. In
my view taken together those matters require more than a general understanding of
what marriage involves. That is consistent with consent in contract being consent to the
specific contract with specific parties, consent in criminal law to sexual intercourse being
consent to intercourse with the specific person, and consent to marriage being consent
to marriage to the specific person. 222
The Australian Marriage Act test is ostensibly different to the English common
law test, which merely requires that a person understand the nature (but not
effect) of the marriage ceremony.223 Having said that, the Australian authorities
do refer with approval to English authorities,224 in particular the decision of
Singleton LJ in Re Estate of Park; Park v Park, where his Lordship held that the
relevant question to be posed in determining whether a person has capacity to
marry is whether the individual is:
215 Ibid.
216 Marriage Act 1961 (Cth) ss 23(1)(d)(iii), 23B(1)(d)(iii).
217 Ibid s 100.
218 (2004) FLC 93-178, 79,020-21. His Honour’s comments were referred to with approval by Mullane J in
Babich v Sokur [2007] FamCA 236 (9 March 2007) [249], [251].
219 (2005) 195 FLR 191, 196.
220 Babich v Sokur [2007] FamCA 236 (9 March 2007) [244].
221 Ibid [252].
222 Ibid [255] (original emphasis).
223 Ibid [244].
224 See, eg, Re Marriage of Brown; Dunne v Brown (1982) 60 FLR 212; Ranclaud v Cabban (1988) NSW ConvR
55-385; Beverley v Watson [1995] ANZ ConvR 369; Barrand v Coxall [1999] QSC 352 (30 November 1999);
Dalle-Molle v Manos (2004) 88 SASR 193; Privet v Vovk (2005) 195 FLR 191; Ghosn v Principle Focus Pty Ltd
(No 2) [2008] VSC 574 (19 December 2008).
65
capable of understanding the nature of the contract into which he [is] entering, or [is]
his mental condition such that he [is] incapable of understanding it? To ascertain the
nature of the contract of marriage a man must be mentally capable of appreciating that
it involves the responsibilities normally attached to marriage. Without that degree of
mentality, it cannot be said that he understands the nature of the contract.225
Therefore, the issue under examination in the context of marriage

includes an analysis of whether the individual in question understands the
responsibilities associated with and the consequences that will flow from
their particular marriage, bearing in mind that the nature of the contract and
the responsibilities associated with it will necessarily vary between different
couples and from marriage to marriage.226 Thus the ability of a client to assess
the potential impact of their married state in the future is an essential element
in determining whether or not the client has capacity to marry and therefore
whether the marriage itself will be or is valid:
A person who has lost their long-term planning ability as a result of a brain injury and
has little capacity to foresee the consequences of their actions may be able to speak quite
eloquently about marriage but be unable to understand the ramifications of entering
into a marriage contract which will have fundamental, long-term ongoing impact on his
or her life and finances.227
8 Executing an enduring power of attorney

Section 41 of the Powers of Attorney Act 1998 (Qld) provides:
(1) A principal may make an enduring power of attorney only if the principal understands
the nature and effect of the enduring power of attorney.
Editor’s note — However, under the general principles, a person is presumed to have
capacity—schedule 1, section 1.
(2) Understanding the nature and effect of the enduring power of attorney includes
understanding the following matters—
(a) the principal may, in the power of attorney, specify or limit the power to be
given to an attorney and instruct an attorney about the exercise of the power;
(b) when the power begins;
(c) once the power for a matter begins, the attorney has power to make, and
will have full control over, the matter subject to terms or information about
exercising the power included in the enduring power of attorney;
(d) the principal may revoke the enduring power of attorney at any time the
principal is capable of making an enduring power of attorney giving the same
power;
(e) the power the principal has given continues even if the principal becomes a
person who has impaired capacity;
(f) at any time the principal is not capable of revoking the enduring power of
attorney, the principal is unable to effectively oversee the use of the power.
Editor’s note — If there is a reasonable likelihood of doubt, it is advisable for the

witness to make a written record of the evidence as a result of which the witness
considered that the principal understood these matters.
225 [1954] P 112, 127.

226 Re Marriage of Brown; Dunne v Brown (1982) 60 FLR 212, 222 (McCall J).
227 Office of the Public Advocate (Victoria), ‘Marriage’ (Practice Guideline No 13, Office of the Public Advocate,
July 2007) 3 <http://www.publicadvocate.vic.gov.au/file/file/PracticeGuidelines/PG13_Marriage_09.pdf>.
66
Further, schedule 3 to the Powers of Attorney Act 1998 (Qld) provides that:
The Supreme Court of Queensland has held that an enduring power of attorney
is more complex and more unfamiliar to most members of the community than
a will and thus requires a higher standard of capacity.228
Guidelines produced by the Office of the Public Guardian provide detailed

guidance to lawyers who act as witnesses to the execution of enduring powers
of attorney.229 Failure to follow the guidelines may amount to unsatisfactory
professional conduct.230
9 Legal capacity in the context of guardianship and

administration matters
9.1 Appointment of a guardian or administrator
Section 12 of the Guardianship and Administration Act 2000 (Qld) provides for
the appointment of a guardian or administrator for an adult with respect to a
matter or matters for which that adult does not have the requisite capacity.231
In each of these cases, it is important to remember that the test is both domain-
specific and decision-specific. For instance, a client may have ‘capacity for simple
and complex personal matters and simple financial matters but [have] impaired
capacity for complex financial matters.’ 232
For the purposes of that Guardianship and Administration Act 2000 (Qld),
‘capacity’ is defined such that a person will have capacity in relation to a matter
if they are capable of:
(a) understanding the nature and effect of decisions about the matter;
(c) communicating the decisions in some way.233
Speaking of this definition in Re MC, the Tribunal made the following general
observations:234
228 Adult Guardian (Re Enduring Power of Attorney of Vera Hagger) v Hagger (Unreported, Supreme Court of
Queensland, Chesterman J, 16 April 2002, 1083 of 2001); Re CAC [2008] QGAAT 45 (5 June 2008) [63].
229 Public Guardian, above n 61.
230 Legal Services Commissioner v Ford [2008] LPT 12 (22 August 2008) 22 (Fryberg J).
231 Importantly, impaired capacity is only one limb of a three-limbed test that must be satisfied before a
substituted decision maker can be appointed. This means that an administrator or guardian may not
be appointed even if the Tribunal finds that the adult does lack capacity. See further Guardianship and
Administration Act 2000 (Qld) s 12(1).
232 Re FHW [2005] QGAAT 50 (2 September 2005) [46].
233 Guardianship and Administration Act 2000 (Qld) sch 4.
234 [2010] QCAT 677 (2 December 2010) [10].
67
Capacity is a functional concept, related to a person’s ability to identify, understand,
evaluate, retain and process relevant information in making a choice between options
for action and the ability to cause that decision to be put into effect. The existence or
absence of a diagnosis of a medical condition is not determinative of impaired capacity:
it is merely one factor taken into account when the tribunal considers how a person’s
functioning is impaired in the decision making process about a particular matter.
The first limb is process-based, meaning it is concerned with the process of

bringing relevant and necessary information to bear in order to make the
decision. In particular, the decision making process must be rational, so that
while ‘[t]he use of information in a decision making process may not necessarily
always be conventional but should be at least rational.’235 The fact that a client
needs certain information about the matter explained to them in language and
concepts that they understand does not mean that he or she has failed the first
limb of the test.236
By contrast, the second limb ‘looks at volition and the susceptibility of an adult
to undue influence’.237 In particular, examines ‘volition and whether a person’s
free will has been so overborne that there is an inability of that person to make
up his or her own mind and to make his or her own decisions.’238
Finally, the third limb requires the person to be able to communicate in some
way. Age, limited education, limited fluency in English and cognitive impairment
may prevent a person from understanding complex and jargonistic language,
but this does not mean that the person cannot communicate their decisions;
rather, it means that their limitations should be taken into account when
communicating with them.239
While cultural conventions and considerations may be relevant background

information that informs any assessment of capacity, the fact that a person
makes (or refuses to make) decisions in conformity with cultural norms should
arguably not be interpreted as meaning the person does not satisfy any of the
three limbs of the test.240 For instance, in some cultures there may be strenuous
obligations to assist every member of an extended family, while in other
cultures women may not traditionally engage in significant decision making.
235 Re HE [2013] QCAT 488 (20 August 2013) [26].

236 Re FHW [2005] QGAAT 50 (2 September 2005) [43]. Similarly, in PY v RJS [1982] 2 NSWLR 700, Powell J
held that a person will be incapable of managing their affairs (for the purposes of the now repealed
Mental Health Act 1958 (NSW)) where they are incapable of dealing in a reasonably competent fashion
with ordinary routine affairs and the lack of such competence creates a real risk that they will be
disadvantaged in the conduct of their affairs or their money or property may be dissipated or lost; ‘it is
not sufficient … merely to demonstrate that the person lacks the high level of ability needed to deal with
complicated transactions or that he or she does not deal with even simple or routine transactions in the
most efficient manner’: 702.
237 Re FHW [2005] QGAAT 50 (2 September 2005) [44].
238 Re HE [2013] QCAT 488 (20 August 2013) [52].
239 Re FHW [2005] QGAAT 50 (2 September 2005) [45]-[46].
240 For a case where the Tribunal took into consideration the obligations of Aboriginal people to their
extended family into account, see Re BSA [2014] QCAT 206 (24 April 2014) [14], [18], [21], [22], [30], [49]. 68
9.2 Making and contesting guardianship and administration applications
General principle 1 in schedule 1 to the Guardianship and Administration Act
2000 (Qld) provides that an adult is presumed to have capacity for all matters.
In Bucknall v Guardianship and Administration Tribunal (No 1), Byrne SJA held
that the Tribunal must apply the presumption that an adult has capacity for a
matter in hearing applications for a guardian or administer to be appointed to a
person, hearing applications for a declaration that a person does or does not have
capacity for a matter, and hearing a review of the appointment of a guardian or
administrator.241
Consequently, adults who are the subject of such applications must be deemed to
have capacity in order to instruct lawyers to either:
(a) resist an application for a guardian or administrator to be appointed to

them;
(b) to make an application for a declaration that the adult has capacity for a
matter; or
(c) to make an application for review of the appointment of a guardian or
administrator (with the purpose of having the appointment revoked),
provided that the lawyer can obtain coherent instructions from the client in
relation to the conduct of the matter.
To adopt any other interpretation would produce an illogical and absurd result
that would undermine the presumption of capacity contained in the Guardianship
and Administration Act 2000 (Qld) and the decision of Byrne SJA in Bucknall. If
lawyers were required to refuse to act for a person the subject of applications
before the Tribunal on the basis of impaired capacity, the person would be denied
representation despite being presumed to have capacity for the purposes of the
proceeding.
Such a denial of representation would also appear inconsistent with section 43(2)(b)(i)
of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which provides
that a party to a proceeding before the Tribunal who is a person with impaired
capacity ‘may be represented by someone else’.242 Persons with impaired capacity
have been referred to as one of ‘the categories of parties for whom an as of right
entitlement to representation was given’.243 Writing extra-curially, Member Bridget
Mandikos of the Tribunal has stated that where ‘a party is … a person of impaired
capacity … that party is not required to apply to QCAT for permission to
be represented as representation is a right under the QCAT Act.’244
241 [2009] 2 Qd R 204, 406-7.

242 See also Guardianship and Administration Act 2000 (Qld) s 124.
243 McKinnon v Queensland [2012] QCAT 169 (5 April 2012) [6] (Senior Member Endicott). But note in that case
the Tribunal emphasised that there must be evidence to rebut the presumption of capacity so that the right
to representation arises: [21]-[23].
244 Bridget Mandikos, ‘Leave for Representation: Section 43 of the Queensland Civil and Administrative
Tribunal Act’ (2010) 43 Hearsay <http://www.hearsay.org.au/index.php?option=com_
content&task=view&id=855&Itemid=48> see section entitled ‘How does a party apply for legal
representation?’.
69
10 Conducting Civil Proceedings
10.1 Queensland courts
Part 4 of Chapter 3 of the Uniform Civil Procedure Rules 1999 (Qld) contains
provisions concerning the involvement of ‘persons under a legal incapacity’ in
civil litigation. The critical test for determining whether the provisions of Part 4
of Chapter 3 apply to require a litigation guardian to be appointed to a person
is whether the person is ‘under a legal incapacity.’245 The definition of ‘person
under a legal incapacity’ is contained in Schedule 5 to the Supreme Court of
Queensland Act 1991 (Qld). According to that definition, a person is under a
legal incapacity if they are under 18 or, more relevantly, they are a ‘person with
impaired capacity’.
The term ‘person with impaired capacity’ is further defined in Schedule 5

of the Supreme Court of Queensland Act 1991 (Qld) to mean ‘a person who
is not capable of making the decisions required of a litigant for conducting
proceedings or who is deemed by an Act to be incapable of conducting
proceedings.’ The mere fact that a person has a psychological incapacity or
disability will not of itself mean that they have ‘impaired capacity’ for the
purposes of the rules.246 Muir J noted in Thomson v Smith:247
The concept of ‘impaired capacity’ concerns a person’s ability to make decisions which
must be made in the course of litigation. The existence of a condition or character trait
which affects the quality or timeliness of such decisions would not establish ‘impaired
capacity’ unless its extent was so gross as to compel the conclusion that the person
was relevantly incapacitated. Imprudence or defective judgment, even if resulting from
an obsession about the litigation or some aspect of it, normally would not constitute
‘impaired capacity’.
In the context of the Victorian rules of court, it has been held that for a person
to have the capacity to conduct civil proceedings ‘the person must be able to
understand the nature of the litigation, its purpose and its possible outcomes,
including the risks in costs.’248 The decision-specific nature of proceedings was
emphasised by Kyrou J in Slaveski v Victoria:249
The question of incapacity in relation to litigation must be examined against the facts
and subject matter of the particular litigation, the number and complexity of the issues
involved and the identity, number and interests of the other parties, particularly opposing
parties. A person can have the requisite capacity for one proceeding and lack it for
another. Where a person is a party to a proceeding and is legally represented, he or she
will be incapable of managing his or her affairs in relation to the proceeding if he or she
does not have the mental capacity to understand the nature of the acts or transactions in
respect of which he or she needs to give instructions to the lawyer.
In the context of the South Australian rules of court, Debelle J held in

Dalle-Molle v Manos that:250
245 Uniform Civil Procedure Rules 1999 (Qld) r 93(1).

246 See, eg, Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 49 (18 February 2003) 4 (Davies JA). In that case,
the Court of Appeal held that evidence that a party had a depressive illness following from a physical
accident did not ‘prove or even suggest that he was legally incapable’. Cf Fowkes v Lyons [2005] QSC
7 (20 January 2005) 3 (Wilson J), where her Honour held that a plaintiff who suffered from paranoid
schizophrenia and cannabis abuse had impaired capacity.
247 [2005] QCA 446 (2 December 2005) [132].
248 Pistorino v Connell [2012] VSC 438 (25 September 2012) [21]. See also Goddard Elliott (a firm) v Fritsch
[2012] VSC 87 (16 March 2012) [557].
249 (2009) 25 VR 160, 183. Kyrou J then listed a series of issues that are relevant to determining whether a
person has capacity to conduct civil proceedings: 184-5.
250 (2004) 88 SASR 193, 199. 70
The level of understanding of legal proceedings must, I think, be greater than the mental
competence to understand in broad terms what is involved in the decision to prosecute,
defend or compromise those proceedings. The person must be able to understand the
nature of the litigation, its purpose, its possible outcomes, and the risks in costs which of
course is but one of the possible outcomes.
On the issue of whether a person can provide sufficient instructions to a lawyer,

Debelle J held:251
In ordinary usage ‘sufficient’ means ‘of a quantity, extent or scope adequate to a certain
purpose or object’: Oxford English Dictionary. When qualifying the noun ‘instructions’,
it is signifying that the person is able, once an appropriate explanation is given, to
understand the essential elements of the action and is able then to decide whether
to proceed with the litigation or, if it is a question of agreeing a compromise of the
proceedings, to decide whether or not to compromise.
In relation to the lawyer’s role in representing a litigant on an application for a

litigation guardian to be appointed to them, Bell J in Goddard Elliott (a firm) v
Fritsch emphasised that:252
Where the client does not have [the mental capacity to participate in the proceeding and
to instruct], the lawyer does not have the authority to represent them in the proceeding,
except for certain limited purposes, most particularly perhaps for the purpose of an
inquiry into that question. I say perhaps because they are not really representing the
client in that process, but rather assisting the court as an officer of the court.
10.2 Federal Court

Similar to proceedings in Queensland courts, Division 9.6 of the Federal Court Rules
2011 (Cth) provides for the involvement of ‘persons under a legal incapacity’
in civil proceedings. A person under a legal incapacity may only start or defend
a proceeding in the Federal Court by the person’s litigation representative.253 For
the purposes of the Federal Court Rules 2011 (Cth), a person is under a legal
incapacity if they are a minor or a ‘mentally disabled person’.254
A mentally disabled person is defined to mean ‘a person who, because of a

mental disability or illness, is not capable of managing the person’s own affairs
in a proceeding.’255
In Owners of Strata Plan No 23007 v Cross, Edmonds J emphasised that the

reference to proceedings means the test for capacity is decision-specific and held
that for a person to have capacity for the purposes of conducting litigation, the
person must have the ability to:256
(a) understand that they require advice in relation to their legal issue;
(b) communicate this requirement to someone who could arrange an
appointment with a lawyer or arrange such an appointment themselves;
251 Ibid 198-9.

252 [2012] VSC 87 (16 March 2012) [549].
253 Federal Court Rules 2011 (Cth) r 9.61.
254 Ibid sch 1 (definition of ‘person under a legal incapacity’).
255 Ibid sch 1 (definition of ‘mentally disabled person’).
256 (2006) 153 FCR 398, 413.
71
(c) instruct the lawyer with sufficient clarity to enable the lawyer to
understand the situation and advise the person appropriately; and
(d) make decisions and give instructions based on the advice the person may
receive from the lawyer and give effect to such advice.
Edmonds J cited with approval the reasoning of Boreham J in White v Fell in
relation to the capacity to conduct civil proceedings:257
To have that capacity she requires first the insight and understanding of the fact that
she has a problem in respect of which she needs advice … Secondly, having identified
the problem, it will be necessary for her to seek an appropriate adviser and to instruct
him with suffıcient clarity to enable him to understand the problem and to advise her
appropriately … Finally, she needs suffıcient mental capacity to understand and to make
decisions based upon, or otherwise give effect to, such advice as she may receive.
Edmonds J also cited with approval the reasoning of Chadwick LJ in Masterman-

Lister v Brutton, where his Lordship held that the issue is:
whether the party to legal proceedings is capable of understanding, with the assistance
of such proper explanation from legal advisers and experts in other disciplines as the
case may require, the issues on which his consent or decision is likely to be necessary in
the course of those proceedings.258
10.3 Family Court and Federal Circuit Court

Under the Family Law Rules 2004 (Cth), a person with a disability may only start,
continue, respond to or seek to intervene in a case before the Family Court by
a case guardian.259 A person with a disability is a person who, because of a
physical or mental disability, either does not understand the nature or possible
consequences of the case or is not capable of adequately conducting, or giving
adequate instructions for the conduct of, the case.260 Under the Federal Circuit
Court Rules 2001 (Cth), a person needs a litigation guardian in relation to a
proceeding before the Federal Circuit Court if ‘the person does not understand
the nature and possible consequences of the proceeding or is not capable of
adequately conducting, or giving adequate instruction for the conduct of, the
proceeding.’261
11 Defending Criminal Proceedings

In order to have the capacity to give instructions in relation to the defence of
criminal proceedings an accused person must be fit to stand trial. In R v Presser,
Smith J outlined the matters an accused person must understand in order to be
fit to stand trial (called the ‘Presser criteria’):262
257 Unreported, Court of Appeal (England and Wales), Boreham J, 12 November 1987); Owners of Strata
Plan No 23007 v Cross (2006) 153 FCR 398, 412-3. This passage was also cited with approval by Bell J in
Goddard Elliott (a firm) v Fritsch [2012] VSC 87 (16 March 2012) [557].
258 Masterman-Lister v Brutton (Nos 1 and 2) (CA) [2003] 1 WLR 1511, 1539; Owners of Strata Plan No 23007 v
Cross (2006) 153 FCR 398, 412.
259 Family Law Rules 2004 (Cth) r 6.08.
260 Ibid Dictionary (definition of ‘person with a disability’).
261 Federal Circuit Court Rules 2001 (Cth) r 11.08.
262 [1958] VR 45, 48. His Honour’s judgement has subsequently been adopted by the High Court and
Queensland Court of Appeal: Kesavarajah v The Queen (1994) 181 CLR 230, 243 (Mason CJ, Toohey and
Gaudron JJ); R v M [2002] QCA 464 (5 November 2002) [4].
72
He [the accused] needs, I think, to be able to understand what it is that he is charged
with. He needs to be able to plead to the charge and to exercise his right of challenge. He
needs to understand generally the nature of the proceeding, namely, that it is an inquiry
as to whether he did what he is charged with. He needs to be able to follow the course of
the proceedings so as to understand what is going on in court in a general sense, though
he need not, of course, understand the purpose of all the various court formalities. He
needs to be able to understand, I think, the substantial effect of any evidence that may be
given against him; and he needs to be able to make his defence or answer to the charge.
Where he has counsel he needs to be able to do this through his counsel by giving any
necessary instructions and by letting his counsel know what his version of the facts is
and, if necessary, telling the court what it is. He need not, of course, be conversant with
court procedure and he need not have the mental capacity to make an able defence; but
he must, I think, have sufficient capacity to be able to decide what defence he will rely
upon and to make his defence and his version of the facts known to the court and to his
counsel, if any.
Importantly, if an accused does not satisfy the last criterion, they will not be fit
to stand trial but will be fit to plead guilty.263 In R v M, de Jersey CJ (with whom
McPherson JA and Mullins J agreed) expanded on the Presser criteria and the
meaning of fitness for trial:264
Fitness for trial, in relation to the capacity to instruct counsel, posits a reasonable grasp
of the evidence given, capacity to indicate a response, ability to apprise counsel of the
accused’s own position in relation to the facts, and capacity to understand counsel’s
advice and make decision in relation to the course of the proceedings. It does not extend
to close comprehension of the forensic dynamics of the courtroom, whether as to the
factual or legal contest. For a person represented by counsel, fitness for trial of course
assumes that counsel will represent the client on the basis of the client’s instructions.
That the giving such instructions may take longer because of intellectual deficit is a
feature with which courts should and do bear.
A person whose fitness for trial is in question may be referred to the Mental
Health Court for determination of that question. Fitness for trial is defined in
the Schedule to the Mental Health Act 2000 (Qld) in the following manner:
fit for trial, for a person, means fit to plead at the person’s trial and to instruct counsel
and endure the person’s trial, with serious adverse consequences to the person’s mental
condition unlikely.
263 Legal Aid Queensland, above n 58, 208.

264 [2002] QCA 464 (5 November 2002) [13].
73
12 Giving Evidence
12.1 Queensland courts
Capacity to give evidence in Queensland courts depends upon whether the
evidence will be given under oath. Section 9A(2) of the Evidence Act 1977 (Qld)
provides that ‘a person is competent to give evidence in the proceeding if, in the
court’s opinion, the person is able to give an intelligible account of events which
he or she has observed or experienced.’ In contrast, section 9B(2) establishes a
higher capacity threshold for giving evidence under oath:
a person is competent to give evidence in the proceeding on oath if, in the court’s
opinion, the person understands that—
(a) the giving of evidence is a serious matter; and
(b) in giving evidence, he or she has an obligation to tell the truth that is over and
above the ordinary duty to tell the truth.
12.2 Federal courts

Capacity to give evidence in federal courts is determined by section 13(1) of the
Evidence Act 1995 (Cth), which relevantly provides that:
A person is not competent to give evidence about a fact if, for any reason (including a
mental, intellectual or physical disability):
(a) the person does not have the capacity to understand a question about the fact;
or
(b) the person does not have the capacity to give an answer that can be understood
to a question about the fact;
and that incapacity cannot be overcome.
13 Voting
The test for capacity to vote is the same for elections to the Commonwealth
and Queensland Parliaments. Section 93(8) of the Commonwealth Electoral
Act 1918 (Cth) provides that a person is not entitled to have their name
placed on the electoral roll or to vote at an election for the Senate or House of
Representatives if ‘by reason of being of unsound mind, [the person] is incapable
of understanding the nature and significance of enrolment and voting’. Section
64(1)(a)(i) of the Electoral Act 1992 (Qld) provides that a person is entitled to
have their name placed on the electoral roll if they are entitled to be enrolled
under the Commonwealth Electoral Act 1918 (Cth).
74
14 Jury Service
In order to be eligible to serve on a jury, a person must not have ‘a physical or
mental disability that makes the person incapable of effectively performing
the functions of a juror’.265 The only two cases to have considered the meaning
of this requirement in Queensland have concerned deaf persons who can
communicate through an Auslan interpreter. Both indicate that the focus of the
test is whether the person’s disability will render them incapable of engaging
in jury deliberations. In Re the Jury Act 1995 and an application by the Sheriff of
Queensland, Douglas J held that a deaf person who could lip read well and who
could communicate through an Australian Sign Language (Auslan) interpreter
was ineligible for jury service.266 His Honour stated that:267
There seem to me to be considerable risks for the fairness of any trial if one relies simply
on the individual’s ability to lip read to qualify her as a juror, given her concession that she
may miss parts of some conversations and the likelihood that she may not be aware that
conversations are occurring which she cannot observe. There is a very real risk, absent the
use of an interpreter, that she will not be able to participate properly in communication
among jurors. In those circumstances, and in the absence of legislative provision to
facilitate the use of an interpreter to assist her to engage in the jury room discussions, my
ruling is that the individual is incapable of effectively performing the functions of a juror
and therefore ineligible for jury service.
In an earlier decision of the Tribunal, Member Roney QC held that a deputy

District Court registrar did not discriminate against a deaf person, who could lip
read proficiently and communicate through an Auslan interpreter, by refusing to
include her in the jury selection process.268 The learned Tribunal member noted
in reaching his conclusions that:269
Potential jurors who are deaf and require an Auslan interpreter would indeed be
persons not ‘incapable of effectively performing the functions of a juror’ at least to the
extent that they could participate in the trial process and before they retire to consider
their verdict. But of course if all of the other jurors selected on the jury were able to
communicate in Auslan, for example, a deaf juror who also used that language would be
perfectly able to communicate and participate in the deliberations without the necessity
for any other person to be in the jury room. In those circumstances there could be no
impediment to the juror effectively performing all the functions of a juror, and that is
enabled because of the individual characteristics of his or her fellow jurors….
There is certainly room for doubt as to what the language of section 4(3)(l) is concerned
with. It does not seem to me to be open to conclude that its reference to persons with a
physical or mental disability means that every person with a disability who may require
assistance to perform their duty and cannot do so otherwise, is ipso facto incapable
of effectively performing the functions of a juror. It is highly questionable whether
incapacity can involve secondary considerations which are not caused by the physical or
mental disability itself, but caused by the necessity for example for something else to
occur which may or may not be permissible by statute, e.g. to allow for the presence of a
non-juror during jury deliberations. I have already rejected, for reasons set out elsewhere,
the proposition that jurors to perform their functions it is necessary that they be capable
of listening to the evidence given orally in open court.
265 Jury Act 1995 (Qld) s 4(3)(l).

266 [2014] QSC 113 (14 May 2014).
267 Ibid [8]-[9].
268 Lyons v State of Queensland (No 2) [2013] QCAT 731 (11 December 2013).
269 Ibid [148], [187].
75
Schedule 3
Office of the Public
Guardian Guidelines
This Schedule contains the Guidelines for Witnessing Enduring

Documents published by the Office of the Public Guardian dated
2014. This Schedule will not be updated if the Office of the Public
Guardian releases updated guidelines. Lawyers are encouraged to
access the website of the Office of the Public Guardian for the most
up-to-date guidelines.
76
Guidelines for Witnessing Enduring
Documents

This supersedes the 2005 “Capacity
guidelines for witnesses of Enduring Powers
of Attorney”

Key Points

Witnesses must satisfy themselves that the principal understands the nature and effect of:
 the document they are signing
 the delegation of their decision making powers and
 directions given about future health care.

When taking instructions, witnesses should:
 ask open‐ended questions
 take notes, detailing their interview with the principal
 refer the principal to a health care professional if you have doubts about their
capacity to understand the document.

Do not witness an enduring document if you have concerns that:
 the principal lacks capacity to understand what they are signing or
 the principal is being unduly influenced by another person to sign the document.

Purpose of these guidelines

In an Enduring Power of Attorney, a person (‘the principal’) delegates to another person the power to make
personal and/or financial decisions on his/her behalf. By an Advanced Health Directive, the principal may give
directions about health matters and special health matters, for his or her future health care. Assessing the
principal’s capacity to understand the nature and likely effects of delegating powers and giving future
directions is one of the most important things that a lawyer, Justice of the Peace or Commissioner for
Declarations, as a witness to the document, can do.

However an assessment of capacity, by a witness, can be difficult. At times it may give rise to significant
personal and professional pressure because the choices made in these circumstances may have to be defended
in the future. A witness to the execution of an enduring document has a statutory duty to certify that the
principal appeared to have the capacity necessary to make the document (Section 44(4) Powers of Attorney Act
1998).

77
Failing to perform this duty competently could have serious ramifications, not only for you, as the witness, but
for the principal. These guidelines will help you to carry out this important statutory duty by:

 highlighting the indicators that may suggest you need to carefully consider a person’s capacity
 providing a framework within which to consider the person’s capacity, and
 assisting you to determine if you need to refer the person to more specialised assessment.

These guidelines are not meant to be a substitute for a proper or more rigorous assessment of a person’s
capacity (where that is justified).

Statutory definition

The Powers of Attorney Act 1998 [Schedule 3] defines ‘capacity’ for an adult for a matter, as meaning the
person is capable of ‐



(c) communicating the decisions in some way

Section 41 of the Powers of Attorney Act 1998 addresses a principal’s capacity to make an Enduring Power of
Attorney. Section 41 states:

(1) A principal may make an enduring power of attorney only if the principal understands the nature and effect
of the Enduring Power of Attorney.

(2) Understanding the nature and effect of the Enduring Power of Attorney includes understanding the
following matters:

(a) the principal may, in the Power of Attorney, specify or limit the power to be given to an attorney and
instruct an attorney about the exercise of the power;

(b) when the power begins;

(c) once the power for a matter begins, the attorney has power to make, and will have full control over, the
matter subject to terms or information about exercising the power included in the Enduring Power of Attorney;

(d) the principal may revoke the Enduring Power of Attorney at any time the principal is capable of making an
enduring power of attorney giving the same power;

(e) the power the principal has given continues even if the principal becomes a person who has impaired
capacity;

(f) at any time the principal is not capable of revoking the Enduring Power of Attorney, the principal is unable
to effectively oversee the use of the power.

It should be noted by witnesses that section 47(1) requires the same requisite capacity to revoke an Enduring
Power of Attorney as is required to make an Enduring Power of Attorney.

Section 42 of the Powers of Attorney Act 1998 addresses a principal’s capacity to make an Advanced Health
Directive. Section 42 states:

78
(1) A principal may make an advance health directive, to the extent it does not give power to an attorney, only
if the principal understands the following matters ‐

(a) the nature and the likely effects of each direction in the advance health directive;

(b) a direction operates only while the principal has impaired capacity for the matter covered by the direction;

(c) the principal may revoke a direction at any time the principal has capacity for the matter covered by the
direction;

(d) at any time the principal is not capable of revoking a direction, the principal is unable to effectively oversee
the implementation of the direction.

Suggested process to satisfy yourself of the principal’s capacity to
understand the document

Initial contact

As a witness of an enduring document, be aware that, from the first contact with the principal, you will be able
to gather information that is relevant to the principal’s capacity to understand the document.

Where you know or reasonably consider that the person has a diagnosed condition that may affect his/her
decision‐making capacity (such as an intellectual or psychiatric disability, acquired brain injury or dementia),
take extra care in witnessing the document, or seek a medical opinion verifying the person’s capacity.

It is recommended that you meet with the principal alone. This is an opportunity to develop rapport with the
principal and to establish the context within which the principal has decided to make the enduring document
(for instance, the death of a partner or a serious illness). It is also an opportunity to determine if the person is
being influenced into making the enduring document.

During this initial contact, it is reasonable to discuss background, family, health problems or related issues
(such as medication that may affect cognitive function, and, in the case of an EPA, the principal’s broad
financial circumstances including assets, source of income, payment of household and other accounts).

If you are concerned about the principal’s cognitive ability, refer the principal to a health care professional to
obtain an assessment of their capacity to understand the nature and effect of the enduring document they
wish to make. A witness should not rely solely on such a medical report, and must ask additional questions to
satisfy themselves of the principal’s capacity. You should never witness an enduring document if you doubt the
principal’s capacity to understand the document.

Indicators of impaired capacity

When you meet the principal, you may see a range of behaviours that indicate impaired capacity. Some early
symptoms, particularly in the area of dementia, may mean the person is:

 more forgetful of recent events
 more likely to repeat themselves
 less able to grasp new ideas
 more anxious about having to make decisions
 more irritable or upset if they cannot manage a task
 easily influenced by others about their decision making
 less concerned with activities of other people
79
 less able to adapt to change
 often losing things or getting lost
 undergoing change in behaviour, and/or
 experiencing change in personality.

People with an intellectual or psychiatric disability may respond differently, and require further questioning to
assess their ability to understand an enduring document.

Interview process

Your role as witness in the making of an enduring document is an essential safeguard for people with impaired
capacity. An interview is your primary tool in assessing if the principal has the capacity to understand the
document.

Always seek an opportunity to meet with the principal alone. Record the questions you ask and the principal’s
responses.

Preferably, ask the principal to read the enduring document before you attempt to explain it. The document
contains a detailed introductory explanation. For vision‐impaired people, consider reading the explanatory part
of the document first.

When interviewing a principal intending to make an Enduring Power of Attorney, keep your questions ‘open
ended’, not closed. For example, this question requires a yes/no response, which may be inadequate in
determining capacity:

You understand what an Enduring Power of Attorney is, don’t you?

These questions allow more expansive responses:

 What is an Enduring Power of Attorney?
 Why do you want an Enduring Power of Attorney?
 What sort of decisions will your attorney be making for you?
 Can you limit the attorney’s powers if you want to?
 Are you able to give specific instructions to your attorney about decisions to be made?
 What is the extent of the assets over which the attorney will have control?
 How many attorneys can you have?
 Why have you selected this person to be your attorney?
 If you have more than one attorney, who will make decisions concerning you or your finances?
 When will the attorney’s power for financial matters begin?
 When will the attorney’s power for personal matters begin?
 How long does the attorney’s power last?
 Can you change or revoke the Enduring Power of Attorney?
 Is there anything else that will end the attorney’s power?
 What would you do if you didn’t agree with the attorney’s decision?

If the principal cannot answer questions such as these, explain the correct responses, then ask the questions
again later in the conversation. For example:

Do you recall that I explained what an Enduring Power of Attorney is? Could you tell me what that explanation
was?

When you explain a financial Enduring Power of Attorney, cover the following:

 that the principal is appointing someone to act on his/her behalf
80
 that the attorney will be able to assume authority to the extent indicated over the principal’s financial
affairs (such as selling his/her house)
 that the authority for the attorney begins once the document is completed (unless otherwise specified)
 that the attorney will be able to do anything with the principal’s personal property (money etc.) and
real property (real estate) that the principal could do
 that the authority will continue should the principal have impaired capacity, and
 that if the principal should lose capacity, the power will be irrevocable.

When you explain a personal Enduring Power of Attorney, cover the following matters:

 that the attorney’s power starts only after the principal has lost capacity for decision making
 that the attorney will be able to assume authority to the extent indicated over the principal’s personal
affairs (such as health care, where the adult lives and with whom, and day‐to‐day issues)
 that the attorney will be able to do anything that the principal can do, and
 that if the principal loses decision‐making ability, the power to the attorney will be irrevocable.

When interviewing a principal intending to make an Advanced Health Directive, you should ask questions such
as:

 has your doctor explained any medical terms or other words that you are
 unclear about? (identify a medical term in the document and ask the principal what it means)
 have you discussed your decisions with family members or close friends?, if yes, ask what did they say?
 what you would want your medical treatment to achieve if you become ill?
 If treatment could prolong your life, what level of quality of life would be acceptable to you?
 how important is it to you to be able to communicate with family and friends?

When you explain an advanced health directive, cover the following matters:

 that the principal may make an advance health directive, to the extent it does not give power to an
attorney
 that a direction operates only while the principal has impaired capacity for the matter covered by the
direction
 that the principal may revoke a direction at any time the principal has capacity for the matter covered
by the direction
 that at any time the principal is not capable of revoking a direction, the principal is unable to effectively
oversee the implementation of the direction.

Where a principal is making an Advanced Health Directive, it is strongly recommended that they discuss it with
their general practitioner or a specialist medical practitioner who knows their medical history and views.

If the principal has problems answering the questions after you have explained, it is advisable that you suggest
that a professional opinion be sought about the principal’s capacity to make an enduring document. This could
be obtained from an appropriately qualified medical practitioner or another professional with expertise
in cognitive assessment, e.g. neuropsychologist.

A medical assessment gives you additional information about the principal’s capacity to understand the
document. However, the decision about whether the principal has capacity to execute the enduring document
remains with you, as the witness.

Be cautious if you observe behaviour or have interactions with the principal that are inconsistent with the
information contained in the medical assessment.

Note taking
81

When assessing capacity to understand an enduring document, be prepared for any challenges to your
assessment of the principal. It is good practice to make a written record of all the steps you have taken in
assessing capacity (including all questions and answers).

Also record other witnesses’ opinions about the principal’s capacity or lack of capacity to understand an
enduring document. It is important to record basic information such as the date, time of the interview, who
was present, the length of the interview and the location.

Concerns

Making an enduring document is a significant matter. The principal should consider seeking professional advice
from his/her solicitor, the Public Trustee or a trustee company before signing this document.

If you suspect that a person is abusing or exploiting someone who is about to become the principal, or is
currently the principal, to an Enduring Power of Attorney, you can contact the Investigations Team at the Office
of the Public Guardian to discuss your concerns.

Contact Details
Office of the Public Guardian Head Office
Phone: 3234 0870 or 1300 653 187 Health Care Consent line: 1300 753 624
e‐mail: [email protected]
web: www.publicguardian.qld.gov.au

The Public Trustee
PO Box 1449
BRISBANE QLD 4001
Phone: 1300 651 591 or (07) 3213 9288
Website: www.pt.qld.gov.au

Endnote:
See Darzins, Dr P, Molloy, Dr W & Strang, Dr D (Eds) (2000) Who Can Decide: The six step capacity assessment
process. Memory Australia Press: Adelaide.

Obtainable from [email protected].

82
Schedule 4
Referral Letter to Medical Professional
Dear Doctor Black

Mr John Smith – DOB 28/07/1952 – Capacity to Execute Power of Attorney
We act for Mr John Smith.
We understand that you are Mr Smith’s psychiatrist.
Mr Smith has authorised us to request that you provide us with a report on whether,
in your opinion, Mr Smith has the legal capacity to execute the enclosed enduring
power of attorney. We also enclose our authority from Mr Smith for you to disclose
all necessary information to us.
Pursuant to the terms of the power of attorney, Mr Smith seeks to appoint his de
facto partner Ms Brown to be his attorney for all financial matters and all personal
matters (which includes a broad range of matters such as where and with whom Mr
Smith lives, day-to-day matters such as diet and dress, and health care). Ms Brown’s
powers as attorney will only begin when Mr Smith becomes incapacitated.
In order for Mr Smith to have legal capacity to execute this power of attorney in the
first place, he must understand the nature and effect of the power of attorney. This
means that Mr Smith must understand the following matters:
1 he may specify or limit the power to be given to Ms Brown and instruct Ms
Brown about the exercise of the power;
2 when the power begins (in this case, when he becomes incapacitated);
3 once the power begins, Ms Brown has power to make, and will have full control
over, the all financial and personal matters subject to terms or information
about exercising the power included in the enduring power of attorney;
4 he may revoke the enduring power of attorney at any time he is capable of
making an enduring power of attorney giving the same power (that is, while Mr
Smith has or regains capacity);
5 the power Mr Smith has given continues even if he becomes a person who has
impaired capacity; and
6 at any time Mr Smith is not capable of revoking the enduring power of attorney,
he is unable to effectively oversee the use of the power.
We consider the following information may also be relevant to your examination of
Mr Smith:
83
7 Mr Smith has two children from a previous marriage: Mrs Sally Place and
Mr Brian Smith.
8 Mr Smith is estranged from his son but still maintains close contact with his
daughter.
9 Mrs Place and Ms Brown do not enjoy an amicable relationship.
10 Mr Smith is adamant that Mrs Sally Place should not be appointed as a co-
attorney under the power of attorney.
If you have any questions or require any further clarification of the relevant legal
test for capacity or any information in relation to Mr Smith, please do not hesitate
to contact us.
Yours faithfully
84
Schedule 5
Bibliography
1 Articles, Books and Reports

American Bar Association, Model Rules of Professional Conduct
(at 2013)
Australian Government, National Health and Medical Research
Council, Office of the Privacy Commissioner, Use and disclosure
of genetic information to a patient’s genetic relatives under
section 95AA of the Privacy Act 1988 (Cth): Guidelines for health
practitioners in the private sector (15 December 2009) Office of
the Australian Information Commissioner <http://www.oaic.gov.
au/images/documents/migrated/2009-12-16045841/E96%20
Privacy%20Act%20(95AA).pdf>
Australian Law Report Commission, Equality, Capacity and Disability
in Commonwealth Laws, Issues Paper No 44 (November 2013)
<http://www.alrc.gov.au/sites/default/files/pdfs/publications/
whole_ip_44.pdf>.
Brereton, Justice Paul, ‘Acting for the incapable – a delicate balance’
(2012) 35 Australian Bar Review 244
Endicott, Clare, ‘Client Capacity and Professional Standards’ (Paper
presented at Queensland Law Society Elder Law Conference, 17
July 2009) <http://ethics.qls.com.au/sites/all/files/Client%20
Capacity%20&%20Professional%20Standards%20-%20Clare%20
Endicott%20QLS%20Elder%20Law%20Conference%202009.pdf>
Gallagher, James and Cara Kearney, ‘Representing a Client with
Diminished Capacity: Where the Law Stands and Where It Needs
to Go’ (2003) 16 Georgetown Journal of Legal Ethics 597
Hamilton, Barbara and Tina Cockburn, ‘Capacity to make a Will and
Enduring Power of Attorney: Issues new and old’ (2008) 38 QLS
Journal 14
Hayes, Susan, Hayes Ability Screening Index Record Booklet (University
of Sydney, 2000)
Laster, Kathy and Veronica Taylor, Interpreters and the Legal System
(Federation Press, 1994)
85
Law Council of Australia, Australian Solicitors’ Conduct Rules 2011 and
Consultation Draft Commentary (19 October 2012) <http://www.lawcouncil.
asn.au/lawcouncil/images/LCA-PDF/docs-2000-2099/2012October19-
ConsultationDraftCommentary.pdf>
Legal Aid Queensland, Criminal Law Duty Lawyer Handbook (5th ed, 2012)
<http://www.legalaid.qld.gov.au/publications/Practitioners-service-
providers/Documents/duty-lawyer-handbook/criminal-law-duty-lawyer-
handbook.pdf>
Legal Aid Queensland, Grants Handbook (10 April 2013) <http://www.legalaid.
qld.gov.au/about/Policies-and-procedures/Grants-handbook/What-do-we-
fund/Nature-and-extent-of-funding/Civil-law/Expert-reports-in-civil-law-
matters/Pages/default.aspx>
Mandikos, Bridget, ‘Leave for Representation: Section 43 of the Queensland Civil
and Administrative Tribunal Act’ (2010) 43 Hearsay <http://www.hearsay.
org.au/index.php?option=com_content&task=view&id=855&Itemid=48>
Molloy, William and Doug Drummond, Standardized Mini-Mental State
Examination (SMMSE), Ministry of Health, Province of British Columbia
<http://www.health.gov.bc.ca/pharmacare/adti/clinician/pdf/ADTI%20
SMMSE-GDS%20Reference%20Card.pdf>
Office of the Australian Information Commissioner, Australian Privacy Principles
(APP) Guidelines (August 2013) <http://www.oaic.gov.au/images/
documents/privacy/applying-privacy-law/app-guidelines/chapter-b-app-
guidelines-v1.1.pdf>
Office of the Federal Privacy Commissioner, Guidelines on Privacy in the Private
Health Sector (8 November 2001) Office of the Australian Information
Commissioner <http://www.oaic.gov.au/images/documents/migrated/
migrated/hg_01.pdf>
Office of the Public Advocate (Victoria), ‘Marriage’ (Practice Guideline No 13,
Office of the Public Advocate, July 2007) <http://www.publicadvocate.vic.
gov.au/file/file/PracticeGuidelines/PG13_Marriage_09.pdf>
O’Neill, Nick and Carmelle Peisah, Capacity and the Law (Sydney University Press
and the Australian Legal Information Institute, 2011)
Queensland Government, Queensland Health, Health Services Act 1991: Part 7 –
Confidentiality Guidelines (February 2012) <http://www.health.qld.gov.au/
foi/docs/conf_guidelines.pdf>
Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012)
Queensland Law Society, Barristers’ Conduct Rules (at 23 December 2011)
Sabatino, Charles, ‘Representing a Client with Diminished Capacity: How Do You
Know It And What Do You Do About It?’ (2000) 16 Journal of the American
Academy of Matrimonial Lawyers 481
Taylor, Andrew, ‘Representing Clients with Diminished Capacity’ (2010) 48
(February) Law Society Journal 56
Wells, Jonathan, ‘Lawyers’ doubts about client capacity: an ethical framework’
(2014) 36(5) Law Society Bulletin (South Australia) 38
Willmott, Lindy and Benjamin White, ‘Solicitors and enduring documents: current
practice and best practice’ (2008) 16(3) Journal of Law and Medicine 466
86
2 Capacity Guidelines
The Bar Council (UK), Client Incapacity (February 2014) 5 <http://www.barcouncil.
org.uk/for-the-bar/professional-practice-and-ethics/client-incapacity/>
Client Capacity Committee of the Law Society of South Australia, Statement of
Principles with Guidelines (2012) <http://www.lawsocietysa.asn.au/PDF/
ClientCapacityGuidelines.pdf>
Client Capacity Sub-Committee, Client Capacity Guidelines: Civil and Family Law
Matters (2009) Law Society of New South Wales <http://www.lawsociety.
com.au/ForSolictors/professionalstandards/Ethics/Protocolsguidelines/
Clientcapacityguidelines/index.htm>
Law Society of New South Wales, When a client’s capacity is in doubt: A Practical
Guide for Solicitors (2009) <http://www.lawsociety.com.au/cs/groups/public/
documents/internetcontent/023880.pdf>
Office of the Public Guardian, Guidelines for Witnessing Enduring Documents
(2014) Department of Justice and Attorney General <http://www.
publicguardian.qld.gov.au/__data/assets/pdf_file/0009/269307/OPG-Fact-
Sheet_Guidelines-for-Witnessing-Enduring-Documents.pdf>
Queensland Law Society, ‘I have doubts about my client’s capacity – what should
I do?’ (2013) Queensland Law Society Ethics Centre <http://ethics.qls.com.
au/content/faq/doubts-client-capacity>
3 Cases
AK v NC (2004) FLC 93-178
Adult Guardian (Re Enduring Power of Attorney of Vera Hagger) v Hagger
(Unreported, Supreme Court of Queensland, Chesterman J, 16 April 2002, 1083
of 2001)
Anderson v Anderson [2013] QSC 8 (22 February 2013)
Babich v Sokur [2007] FamCA 236 (9 March 2007)
Banks v Goodfellow (1870) LR 5 QB 549
Barrand v Coxall [1999] QSC 352 (30 November 1999)
Bergmann v DAW [2010] QCA 143 (11 June 2010)
Bergmann v Dengiz [2010] QDC 18 (10 February 2010)
Beverley v Watson [1995] ANZ ConvR 369
Borchert v Terry [2009] WASC 322 (6 November 2009)
Borthwick v Carruthers (1787) 1 TR 648
Boughton v Knight (1873) LR 3 P & D 64
Boyse v Rossborough (1857) 10 ER 1192
Bucknall v Guardianship and Administration Tribunal (No 1) [2009] 2 Qd R 204
Cosham v Cosham (1899) 25 VLR 418
Dalle-Molle v Manos (2005) 88 SASR 193
Fowkes v Lyons [2005] QSC 7 (20 January 2005)
87
Frizzo v Frizzo [2011] QCA 308 (1 November 2011)
Frizzo v Frizzo [2011] QSC 107 (12 May 2011)
Ghosn v Principle Focus Pty Ltd (No 2) [2008] VSC 574 (19 December 2008)
Gibbons v Wright (1954) 91 CLR 423
Goddard Elliott (a firm) v Fritsch [2012] VSC 87 (16 March 2012)
Hunter and New England Area Health Service v A (2009) 74 NSWLR 88
J (by her next friend) v J [1953] P 186
Jones v Jones [2012] QSC 113 (27 April 2012)
Kerr v Badran [2004] NSWSC 735 (17 August 2004)
Kesavarajah v The Queen (1994) 181 CLR 230
L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114
Law Society of NSW v Foreman (No 2) (1994) 34 NSWLR 408
Lawrence v Federal Magistrate Driver [2005] FCA 394 (15 April 2005)
Legal Services Commissioner v Ford [2008] LPT 12 (22 August 2008)
Legal Services Commissioner v Towers [2006] LPT 3 (22 May 2005)
Lyons v State of Queensland (No 2) [2013] QCAT 731 (11 December 2013)
Manches v Trimborn (1946) 174 LT 344
Masterman-Lister v Brutton (Nos 1 and 2) (CA) [2003] 1 WLR 1511
McD v McD [1983] 3 NSWLR 81
McKinnon v Queensland [2012] QCAT 169 (5 April 2012)
Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398
P v R [2003] NSWSC 819 (9 September 2003)
Pates v Craig [1995] NSWSC 87 (19 October 1995)
Pistorino v Connell [2012] VSC 438 (25 September 2012)
Privet v Vovk (2005) 195 FLR 191
R v M [2002] QCA 464 (5 November 2002)
R v McNaughten (1843) 10 Cl & Fin 200
R v P (2001) 53 NSWLR 664
R v Presser [1958] VR 45
Ranclaud v Cabban (1988) NSW ConvR 55-385
Re An Alleged Incapable Person (1959) 77 WN (NSW) 156
Re Bridges [2001] 1 Qd R 574
Re BRT [2012] QCAT 128 (20 March 2012)
Re BSA [2014] QCAT 206 (24 April 2014)
Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290
Re C (TH) and the Protected Estates Act [1999] NSWSC 456 (3 May 1999)
Re CAC [2008] QGAAT 45 (5 June 2008)
88
Re Cumming (1852) 42 ER 660
Re EEP [2005] QGAAT 45 (24 August 2005)
Re Estate of Park; Park v Park [1954] P 112
Re FHW [2005] QGAAT 50 (2 September 2005)
Re Griffith; Easter v Griffith (1995) 217 ALR 284
Re HE [2013] QCAT 488 (20 August 2013)
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re MAD [2007] QGAAT 56 (28 August 2007)
Re Marriage of Brown; Dunne v Brown (1982) 60 FLR 212
Re MB (Caesarean section) [1997] 2 FLR 426
Re MC [2010] QCAT 677 (2 December 2010)
Re T (Adult: Refusal of Treatment) [1993] Fam 95
Re the Jury Act 1995 and an application by the Sheriff of Queensland [2014] QSC
113 (14 May 2014)
Read v Carmody [1998] NSWSC 182 (23 July 1998)
Richard Buxton (a firm) v Mills-Owen [2010] 4 All ER 405
Richmond v Branson [1914] 1 Ch 968
Ruskey-Fleming v Cook [2013] QSC 142 (3 June 2013)
SA v Manonai [2008] WASCA 168 (15 February 2008)
Sharp v Adam [2006] EWCA Civ 449 (28 April 2006)
Slaveski v Victoria (2009) 25 VR 160
Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 49 (18 February 2003)
Thomson v Smith [2005] QCA 446 (2 December 2005)
Till v Nominal Defendant [2010] QSC 121 (22 April 2010)
Tobin v Ezekiel [2011] NSWSC 81 (1 March 2011)
Total Trading SRL v Nastri [2007] VSC 313 (31 August 2007)
White v Fell (Unreported, Court of Appeal (England and Wales), Boreham J, 12
November 1987)
XYZ (Guardianship) [2007] VCAT 1196 (29 June 2007)
Yonge v Toynbee [1910] 1 KB 215
4 Legislation
Commonwealth Electoral Act 1918 (Cth)
Criminal Code 1899 (Qld)
Electoral Act 1992 (Qld)
Evidence Act 1977 (Qld)
Family Law Rules 2004 (Cth)
Federal Circuit Court Rules 2001 (Cth)
89
Federal Court Rules 2011 (Cth)
Forensic Disability Act 2011 (Qld)
Guardianship and Administration Act 2000 (Qld)
Health Services Act 1991 (Qld)
High Court Rules 2004 (Cth)
Hospital and Health Boards Act 2011 (Qld)
Jury Act 1995 (Qld)
Legal Profession (Australian Solicitors Conduct Rules) Notice 2012 (Qld)
Legal Profession (Barristers Rules) Notice 2011 (Qld)
Legal Profession Act 2007 (Qld)
Marriage Act 1961 (Cth)
Mental Health Act 2000 (Qld)
National Disability Insurance Scheme Act 2013 (Cth)
Powers of Attorney Act 1998 (Qld)
Public Guardian Act 2014 (Qld)
Supreme Court of Queensland Act 1991 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
5 Treaties
Convention on the Rights of Persons with Disabilities, opened for signature
30 March 2007, 999 UNTS 3 (entered into force 3 May 2008)
6 Other
A list of community legal centres is available on the Queensland Association of
Independent Legal Services Inc website <http://www.qails.org.au/>.
90
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3 Ethical Duties and Guiding Principles 14

4 Basic Principles of Legal Capacity 19

4.2 Capacity is time-specific 19

5 Practical Matters to Consider in Taking Instructions 24

8 Who Pays the Costs of Maximising and Assessing Capacity? 54

Definitions and Interpretation

(a) capacity is a reference to legal capacity;

This Handbook is dated 1 July 2014. It is based on the law of Queensland

1.1 What is the purpose of this Handbook?

Underpinning the development of the Handbook is the belief that

1.2 Australian Law Reform Commission report

1 Australian Law Report Commission, Equality, Capacity and Disability in Commonwealth

1.4 Fundamentals of lawyers and capacity

(a) the duty to follow lawful, competent and proper instructions;

NO Does the client

Has a guardian or Is the appointment

Will the client

Does the medical

Figure 1: Diagram showing step-by-step general conceptual framework for

1.6 Where client has capacity (the presumption of

2.1 What is legal capacity?

2.2 Why is legal capacity important?

6 (1857) 10 ER 1192, 1210.

3.1 Ethical duties relevant to capacity

This statement was quoted with approval by Dixon J in Pistorino v Connell,

In so far as it does not conflict with a lawyer’s paramount duty to the

15 [2012] VSC 438 (25 September 2012) [4], [6].

(e) Duty of confidence

3.2 Consequences of failure to comply with the

(a) increased costs to the client and any relevant counterparties;

3.3 The role of the lawyer

25 Legal Profession Act 2007 (Qld) s 227(2).

It cannot be emphasised enough that in conducting this assessment, the lawyer

30 [2012] VSC 87 (16 March 2012) [562] (emphasis added).

4.1 Presumption of capacity

4.2 Capacity is time-specific

4.3 Capacity is domain-specific

4.4 Capacity is decision-specific

4.5 Capacity to decide must be distinguished from the

In relation to testamentary dispositions, Gleeson CJ (with whom Handley JA

4.6 No assumption of incapacity due to appearance,

Importantly, Kirby P has emphasised that:

4.8 Substituted decision making is a last resort

(a) an informal decision maker (eg, family members or friends);

52 Guardianship and Administration Act 2000 (Qld) s 5(c)(iii).

After asking Will further questions to establish that he understands the

5.1 Who is my client and what is the decision to

In cases of the former, while others may accompany a client to

Case Study: Identifying the client

57 Sabatino, above n 9, 487.

•• Where a matter is within the scope of a substituted decision maker’s

•• In all cases, including where the substituted decision maker is the

•• See Chapter 7.2 for more information about substituted decision

Similarly, if Henry had sought the assistance of a lawyer in relation to a property

See Item 9.2 of Schedule 2 for further discussion.

5.2 Is there a reason to question my client’s capacity?

As a preliminary screening tool, lawyers may wish to question clients about