The Star: May 30, 2019









As lawyers, we are required to meet with you and take your

instructions in order to help you complete the particular legal

task you are planning. Sometimes when we do this, we need to

take a little extra time to consider your mental capacity to make


Mental capacity is a client’s capacity to make a decision.

Decision making requires that a client:

• understands the decision they are having to make

• can discuss with us the possible options available to them in a

way that shows they appreciate the risk and or benefit of those


• understands the impact that a decision, or the lack of a decision,

may have on them or their loved ones

• is able to articulate and discuss all of the above with us.

It is important to note that the level of capacity required isn’t the

same in every situation. For example, to make a Will, the legal

test is whether the client knows they are making a Will and the

effect of doing so, whether they understand the extent of the

assets they are dealing with, whether they comprehend the moral

claims which they ought to give effect to, and finally whether

they are free of any disorders of the mind that could distort their


However, when giving instructions to complete Enduring Powers

of Attorney, the test is lower and is satisfied if a client understands

the broad consequences of granting an enduring power of

attorney and can process the relevant information and appreciate

the nature and effect of the power they are giving.

Having these discussions with our clients is difficult. It can be

very confronting, both for our clients and for us. In a worst case

scenario, our clients can be very offended by us questioning their

capacity. This is not our intention. Our intention is to ensure that

the legal outcome our clients have set out to achieve, has the best

possible opportunity to succeed.

We are aware that if there is a likelihood that our client’s decision

might be challenged, one of the first questions that may be raised

is whether our client had the capacity required to make the

decision in the first place.

The best way of mitigating this risk is to

undertake a capacity assessment prior

to completing your legal work with

your health professional. It is best that

the assessment be scheduled as close as

possible to the appointment to complete

the legal work required.

At Harmans we have a specialist seniors

team to help you through the process of

setting up your legal deeds and dealing

with any queries you may have. Contact

Phillipa Shaw on 352-2293 to arrange an

appointment to discuss your situation.






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