Don’t leave it too late.A decade ago, a group of us girls having staged our first play ‘Toba Tek Singh’ found ourselves excited at an invite extended to us by the Government College, Lahore. Doctors can provide evidence and opinion, but the final decision is a matter for the courts in the application of the law.įinally, to deal with the loss of legal capacity, arrange for the sufferer to provide an enduring power of attorney and perhaps an appointment of an enduring guardian while they still have the capacity to do so. Note that the decision about mental and therefore legal capacity is a legal decision not a medical decision. In relation to a will, the onus of proving capacity falls on the person propounding the will, though it quickly shifts to the person challenging the will once it is shown that the will was duly executed and is rational on its face. If someone alleges otherwise, they must prove it. The presumption of capacity – with all transactions except a will – means it is presumed the person has mental capacity. Several aspects of all the tests and how they are applied are worth noting. The test is the ability to understand the nature of that transaction (that is, its broad application) when it is explained. In other matters, the mental capacity required by the law depends on the particular legal transaction that is being considered. Space doesn’t permit us to examine the tests for making a will here. There are three different types of tests for mental capacity – those set down in specific legislation (see for example the Guardianship and Administration Act 1993 (SA) which contains a particular definition of mental incapacity that must be met before the Guardianship Board can consider making orders or decisions under the Act), the common law test for the ability to make a will set out in the 1870 case of Banks v Goodfellow and the general common law test of mental capacity in respect of all other actions detailed in Gibbons v Wright in 1954. What is it the sufferer wants to do? What is the test of capacity for them to meet to be able to do that? Can they pass that test? Several important questions need to be answered whenever the issue is being considered. For example, the NSW Supreme Court has found that a person incapable of managing their financial affairs may still be capable of making a will. Planning aheadĪ person may have the capacity to make some decisions, such as deciding whether to make small purchases such as groceries, but may lack capacity to make other decisions, such as deciding whether to enter into more complicated financial arrangements.Ī finding of incapacity in one area does not automatically mean that capacity is lacking in another area. Knowing when a person has “crossed the line” lies in understanding that just as dementia progresses in small increments, so too does the question of when the sufferer loses legal capacity as a result.
Most people value their legal rights highly and would not want their ability to exercise those rights to be taken from them lightly which is why the decision to do so must only be taken when it is clear that the person has lost the necessary eligibility to keep those rights. Once you lose legal capacity other people must exercise your rights for you. Probably more common though is the loss of mental capacity which robs you of the understanding our law requires you to have to acknowledge the proper exercise of your legal rights. If you’re in a coma or, due to some physical condition, unable to sign a document or communicate your wishes, your ability to exercise your legal rights is compromised. That right is lost when you are incapable of exercising those rights either through physical or mental incapacity. Legal capacity is the right to exercise your legal rights. How long the process takes depends on the precise condition but at some point the sufferer will lose legal capacity and it’s important to be aware of that potential right from the start. Dementia is a cruel condition, particularly for the sufferer’s family who witness the slow decline in the health and mental acuity of a loved one.
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