Mental Capacity is a concept which is used by the law to analyse if a person has the requisite ability to understand the nature and effect of documents that they are signing. It affects the signing of many different documents, which can include wills, powers of attorney and other legal documents which people may look at executing at time when their mental capacity may be in question.
There are strict guidelines for solicitors in operation in New South Wakes which say how questions of mental capacity are to be dealt with in relation to the production of documents like wills. In particular, some of the mental states which might mean that a person lacks capacity can include:
Acute depression is a serious mental illness. Common signs include:
Lack of motivation and confusion;
Inability to make decisions, pay attention, remember short-term matters.
Acquired brain injury and organic brain damage
Some of the signs of intellectual disability will be present, although some areas of ability will be intact
A history of substance abuse or trauma resulting in brain injury.
Dementia is caused by a number of conditions, the most common being Alzheimer’s disease. Common signs include:
Loss of short-term memory
General decline in intellectual ability and judgment
Difficulty with reading and writing
Short attention span, easily distracted
Inabilty to hold complex instructions and make a decision based on those instructions
Inability to express in one’s own words an understanding of information provided
Difficulty in understanding questions or instructions
Responding inappropriately or inconsistently to questions in an effort to cover up lack of understanding or in eagerness to please;
Has attended a special school or was in a special class
Has been in supported employment (for example in a sheltered workshop)
Is in receipt of a Disability Support Pension due to intellectual disability.
Where there a number of these signs are present, administration of the HASI test is recommended.
Manic-depression or bipolar affective disorder may not be immediately apparent. Common signs include:
In the manic phase, a euphoric, grandiose, extravagant mood
Making large purchases regardless of financial resources
Dramatic mood swings
Flight of ideas – flitting from idea to idea with only a superficial connection between ideas.
Schizophrenia is a devastating mental illness that, when untreated, can severely impair a person’s capacity. Common signs include:
Delusions – a persistent belief structure significantly different to that held by most members of the community, which may include grandiose ideas, or a belief of being persecuted, or under surveillance;
Hallucinations – often auditory (voices)
Thought disorder – contorted, chaotic thought processes
Extreme, rapidly changing emotions
Psychosocial deterioration – a personal history of decline in employment and loss of friendships and family relationships.
These are merely some of the conditions that can afflict people with capacity issues related to the law. If you would like legal advice or assistance in relation to a matter like this, please do not hesitate to contact us.