Understanding capacity to make decisions
Part of the Capacity topic
Learn what capacity means, how it’s assessed and why it's important for decision-making under Queensland’s guardianship legislation.
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What is capacity
Capacity is a legal term which refers to a person’s ability to make their own decisions.
Capacity is specific to the type of decision to be made and when the decision must be made. It can change or vary and can depend on how complex the decision is, the support available and when the decision is made.
In Queensland, every adult is presumed to have capacity to make all decisions until proven otherwise.
Why it matters
If an adult has capacity, they can make legally recognised decisions about their life, such as:
- their health care
- support services they may need
- where they live
- how they manage their money.
If an adult has impaired capacity for a decision, someone else might need to make the decision for them.
Who can carry out a capacity assessment
Many different people may be required to carry out or seek an assessment of an adult’s capacity to make a decision.
This could include a:
- family member, friend or colleague
- health professional
- social worker, support worker or advocate
- person who works in the law, including an attorney or a Justice of the Peace
- worker in a financial institution
- Aged Care Assessment Team (ACAT) worker.
While anyone can carry out a capacity assessment, an assessment is just an opinion and the results of the assessment can be reviewed or challenged. The Queensland Civil and Administrative Tribunal (QCAT) or the Supreme Court can make a formal declaration about an adult’s capacity.
How is it assessed
The Queensland Capacity Assessment Guidelines 2020 (capacity guidelines) provide general information about capacity, capacity assessment and the legal tests of capacity under Queensland’s guardianship laws (the Guardianship and Administration Act 2000 and Powers of Attorney Act 1998).
The capacity guidelines include:
- principles to apply when assessing an adult’s capacity
- details on the legal tests that apply to capacity
- checklists to use for conducting a capacity assessment
- helpful information, hints, tips, examples and practical guidance for making capacity assessments.
The capacity guidelines are relevant to the assessment of capacity to:
- make decisions in relation to personal (including health) and financial matters; and
- make an enduring document (including an enduring power of attorney or an advance health directive)
The capacity guidelines have been prepared by the Attorney-General and Minister for Justice as required under section 250 of the Guardianship and Administration Act 2000.
Access the Queensland Capacity Assessment Guidelines 2020 (PDF)
What happens after an assessment
If the adult has capacity for a particular decision, they have the right to make their own decision. This includes if the adult can make the decision with support and access to the necessary information.
If the adult does not have capacity for a particular matter, they may need:
- a trusted person or family member to make the decision for them on an informal basis, or
- an attorney, guardian or administrator or statutory health attorney [Insert link] to make the decision for them.
If you are unsure about the adult’s capacity, you should get a second opinion from a professional. For example, the adult’s general practitioner or specialist (such as a geriatrician, psychiatrist or a psychologist), or a lawyer can carry out a formal capacity assessment.
An application can also be made to QCAT for a formal declaration or finding about the adult’s capacity.
See a declaration about capacity on the QCAT website.