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  • NSW Parliament has suggested that renewed attention be given to assessing mental capacity.
  • It is important to understand the different ’tests’ for mental capacity and to have sound procedures for making such an assessment.
  • The Law Society has revised and republished its Practical Guide to Mental Capacity (see
  • The assessment of mental capacity is time and task specific, and must be undertaken without preconceptions.
  • If a medical opinion is sought to assist in the assessment of mental capacity, it will often be necessary to direct the doctor’s attention to the relevant ‘test’.

In late June this year, a Committee of the NSW Legislative Council produced a report into elder abuse in New South Wales (General Purpose Standing Committee No.2, NSW Parliament, Legislative Council, Elder abuse in New South Wales, Report 44 – June 2016). Among other things, the Committee considered that there is a need to improve solicitors’ assessment of mental capacity in respect of substitute decision making, wills, property and other financial transactions. Studies referred to in the report suggest that cognitive impairment and other forms of disability are strongly associated with an increased vulnerability to abuse. This is particularly the case when it comes to the elderly. The Office of Legal Services Commissioner and Lawcover have also identified capacity as a growing area of complaint and claims against solicitors.

It is in both practitioners’ interests and clients’ interests that we are familiar with the legal principles involved in the assessment of mental capacity and vigilant in the application of those principles, especially with elderly clients. After all, the existence of mental capacity is essential to all legal transactions, from wills and contracts to litigation.

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