Capacity Toolkit

Checklist Overview

Introduction Purpose Guidance (not legal advice) Definition of capacity Legal test for capacity

Key Practice Points Presumption of capacity Capacity is decision/time specific Assess the ability NOT the decision Supported decision making Substitute decision making Tikanga Māori & cultural diversity Form of assessment Who should carry out assessments

Capacity Assesment Overview Preparing Assesment Interview After the Interview

The Legal Framework Overview Mental capacity law Relevant legal test PPPR Act : capacity thresholds Activating EPOAs HDC Code: capacity to consent to treatment Right 7(4) of the HDC Code Capacity to make a Will Refusal to undergo assessment

Useful Resources Legal resources Education video Cultural competence International guides to assessment Authors & Acknowledgments

MENTAL CAPACITY LAW

There is a wide range of legislation and common law (case law) in New Zealand that is relevant to people with impaired capacity for decision-making. This section explains the main New Zealand law and legal tests relevant to capacity assessments.

The Protection of Personal and Property Rights Act 1988 (PPPR Act) is the adult guardianship law that applies to people who lack capacity and are 18 or older. It authorises the appointment of substitute decision-makers by the Family Court (welfare guardians and property managers) or “one-off” orders for care and treatment decisions (personal orders), and provides the mechanisms for making and activating enduring powers of attorney (EPOAs), when a person lacks capacity for decision-making.

The Code of Health and Disability Services Consumers’ Rights (HDC Code) concerns consent to health care treatment and procedures. Under the HDC Code, consent to health care procedures is necessary as required under Rights 5, 6 and 7, including the right to make an informed choice and give or refuse consent.

Under the PPPR Act and the HDC Code, a substitute decision-maker can include:

an attorney appointed by the person for property or care and welfare decisions under an enduring power of attorney (EPOA);
a welfare guardian or property manager appointed by the Court;
the Court making a specific personal order about the person’s care and treatment or approving the person’s will made by the person or the person’s property manager;
the clinician that is providing care and treatment to the person can make a decision in the person’s best interests where there is no substitute decision-maker, provided reasonable steps are taken to ascertain the views of the person and others as set out in Right 7(4) of the HDC Code.