All individuals over the age of 18 are considered to have the capacity to make decisions until demonstrated otherwise. A decision to formally assess a person's capacity should always be specific to the decision(s) at hand and start from a presumption of capacity. A person's decision-making capacity is determined by their ability to:

  • understand the information relevant to the decision
  • retain that information to the extend necessary to make the decision
  • use or weigh that information
  • communicate the decision using speech, gestures or other means.

Capacity is:

  • domain specific (domains can include personal and lifestyle, finances, healthcare)
  • decision specific (even within domains, for example, the person might be able to consent to a blood test but not to an amputation)
  • time specific (note that capacity may fluctuate, for example, the older person might be better at certain times of the day).

Evidence of incapacity can include the person:

  • not knowing or understanding the issues
  • being unable to provide possible approaches to solving the issues
  • not appreciating reasonably foreseeable circumstances
  • making decisions based on delusional constructs
  • having significant cognitive impairment.

If you suspect that the individual has a disability that is impairing their ability to make an informed decision, consider whether an assessment of decision-making capacity is required. If you can avoid an application to VCAT you may not need to complete a capacity assessment. 

If the older person and their family agree with the treating team’s recommendation, you may be able to avoid a formal capacity assessment and an application to VCAT for guardianship.

If the person or their family disagrees with the treating team’s recommendation, and you have explored least restrictive alternatives, a formal capacity assessment should be completed to determine the extent to which their disability is affecting their ability to make the specific decision.

A medical practitioner or a neuropsychologist will complete the assessment. In some cases, particularly in regional and rural hospitals, the medical report can be supported by cognitive assessments completed by an occupational therapist.