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

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.