IDENTIFYING THE RELEVANT LEGAL TEST

To assess capacity, it is necessary to identify the decision required to be made and the relevant legal test. As with many countries, New Zealand follows a functional, not a status approach to capacity.

The test of capacity used in this toolkit is based on a review of the functional approach in the PPPR Act and case law, which broadly reflects the functional test and the same concepts in the Mental Capacity Act 2005 (England and Wales) (MCA test). The four elements of the MCA test are the inability to: understand, retain, use or weigh relevant information, or to communicate the decision, and provides simple and logical steps to assessing capacity.

There are several tests for capacity in other legislation, for example, capacity to stand trial in the Criminal Procedure (Mentally Impaired Persons) Act 2003.  There are tests that have been developed in court cases (known as common law).  These cover the capacity to: make a will; make a gift; to enter a contract; litigate (take part in legal cases); and to enter a marriage.

  © Copyright 2017 Alison Douglass