This post explains what the legal definition of decision making capacity before outlining who is empowered to determine whether an individual has capacity, under what circumstances they can make that determination, and how it is made.

Case Study: Granddad didn’t recognise me

Haley knew that she was her grandfather’s favourite granddaughter and was shocked when visiting him some months ago he momentarily didn’t recognise her. He was aged 85 and fairly fit and healthy although he was slowing down. Haley had never thought that he might be suffering dementia. He was also selling his house with his wife to move into a retirement village.

Haley went with her grandad and granny to a lawyer to assist them with the paperwork and quietly mentioned her concerns. The lawyer asked grandad a lot of personal questions and a few things about the news of the day and his assets. He confidentially advised her that her grandad was in the early stages of losing cognition, but that he currently had the legal capacity to proceed with the sale for the move into their new residence.

Who decides on legal capacity?

Even in the area of medical consent, cognition or capacity is a legal enquiry. Various standards of capacity are required for different purposes. To marry requires a much lower cognition or capacity than to make a Will, and to make a Will requires less capacity than to make an Enduring Power of Attorney (EPOA). Even lawyers are sometimes surprised that an EPOA requires a more rigorous understanding by the donor than a Will. This is because the Powers of Attorney Act 2003 prescribes certain certifications and the practical ambit of an EPOA gives the attorney substantial powers over the donor’s property.

What does the law require?

The classic statement of the law still followed today is set out in an old English case decided in 1870 and known as Banks v Goodfellow. In that case Mr Justice Cockburn prescribed three essentials.

Firstly it is essential that a Will maker understand the nature of the act and its effects. That is he/she understands that a Will is being made and that that individual making the Will fully appreciates to whom his property is passing.

Secondly the individual making the Will must understand the extent of the property of which he is disposing.

Thirdly the Will maker must be able to comprehend and appreciate the claims to which he ought to give effect. That is he should have some understanding as to his proposed beneficiaries and where they fit within his moral duty.

This law is still valid today.

Who decides if a particular person has cognition?

The Courts have held that there is a hierarchy of people who are best able to give evidence in these sorts of matters. Firstly those who are closest to the particular person. A spouse, child, someone who they live with, or someone who they are in close living relationship with.

Secondly a longer term General Practitioner would be able to assist. This is because a GP normally sees a patient fairly regularly over a number of years. He/she is well versed in noting any failure of cognition and its progression.

If the GP is still not sure of the diagnosis, they may refer the patient to a specialist geriatrician and/or psychologist. Those specialities have recognised tests that can be applied in assisting the GP, upon receipt of the specialist doctor’s report, they can advise appropriately.

Aging today

Our population is ageing with growing longevity. Consider that in 1920 the average male retired at 65 and died at 66. Todays 60 year old can expect to live to 86 (male) and nearly 90 (female). The number of people aged 100 and over is growing exponentially.

Specialist geriatricians believe that the average 85-year-old will have a 35 to 40% chance of some cognitive loss and because more and more of us especially in the middle classes are leaving substantially larger estates the question of cognition is a real one for today.

Get the help from us

At Owen Hodge Lawyers, we are always happy to work with you to ensure that your Will and Enduring Power of Attorney is airtight and up to date.

In the event that you find yourself in need of assistance with any Wills and Estate Planning matters, please don’t hesitate to contact the offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding any legal issues. Please feel free to call us at your earliest convenience to schedule a consultation on 1800 780 770.