Understanding capacity to make decisions

Part of the Powers of Attorney and guardianship topic

Learn what capacity means, how it’s assessed and why it's important for decision-making in Queensland’s guardianship system.

What you should know

In Queensland, it’s assumed every adult has capacity unless proven otherwise.

Capacity determines if you can make your own decisions. If not, someone else needs to make decisions for you.

What is capacity

Capacity is the ability for an adult to make decisions about their own life.

Under Queensland law, an adult has capacity if they meet the general test of capacity.

You have capacity if you can:

understand the nature and effect of a decision
freely and voluntarily make a decision
communicate your decision in some way.

If you have capacity, you can decide things like:

health care
support services
where you live
how you manage money.

Capacity is about the ability to make decisions. Whether the adult makes a decision that others might think is wrong, risky, unwise or immoral is not relevant.

Why capacity matters

Capacity is the basis of Queensland’s guardianship system. It protects your rights and independence.

If you don’t have capacity to make a decision, someone else may decide for you.

Principles of assessing capacity

There are 5 principles to apply when making an assessment of someone’s capacity.

Presume capacity
Every adult has capacity unless proven otherwise.

Decision- and time-specific
Capacity is assessed for each decision, when needed. It may change over time.

Give support
Provide help and information to make and communicate decisions. This includes using accessible formats, interpreters or assistive technologies.

Focus on ability
Focus on whether the adult has the ability to make a decision. Assessment is not concerned with the quality of the decision.

Respect the adult
Assessments should be respectful and private. The adult should understand the process and what it means for them.

How capacity is assessed

An assessment will address any concerns about an adult’s capacity.

Anyone can assess capacity. It’s an opinion and can be reviewed or challenged.

A formal decision can be made either by the:

Queensland Civil and Administrative Tribunal
Supreme Court.

Assessment steps

Step 1: Identify the decision
It may relate to either:

personal matters
health
money.

Step 2: Check if needed
Only assess if there is a genuine concern.

Step 3: Apply the general test of capacity
Queensland’s guardianship law requires the adult to:

understand the decision
make their own decisions without coercion or influence
communicate their decision in some way.

Step 4: Prepare

gather information
provide support
create a safe space.

Step 5: Ask questions

explain what’s happening
ask clear open-ended and specific questions
check for any signs of pressure or coercion
check understanding.

Step 6: Record the outcome

who was there
what you found
reasons for the outcome.

If the adult lacks capacity at the time of assessment, this may be temporary.

Suggest a timeframe for a review if necessary.

What happens after capacity is assessed

If the adult has capacity
If the adult does not have capacity
If you're unsrue about the adult's capacity

If the adult has capacity

The adult make their own decision. Offer help or information if needed to allow them to reach a decision.

If the adult does not have capacity

They may need:

more help like simplified information, advice from family or advocates
a trusted person or family to make the decision for them
an attorney, guardian, administrator or statutory health attorney to make the decision.

If you're unsure about the adult’s capacity

You can get a second opinion from a professional. For example, a GP or psychologist can provide a formal assessment.

The Office of the Public Guardian or Public Trustee can give you advice.

The Queensland Civil and Administrative Tribunal or the Supreme Court provide formal ruling. You will need to apply.