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Dr Helen SiddleConsultant PsychiatristMBBS, FRANZCP, MFPOA

Medico-legal

Capacity assessments

Whether a person can make a particular decision, at a particular time.

Capacity is a legal concept, not a medical one. It is specific to the decision being made and to the time it is made. A person may have capacity for one decision and not another, or on one day and not the next.

The law presumes every adult has capacity, and a diagnosis such as dementia, mental illness or brain injury does not, by itself, displace that presumption. The question is whether the person can understand the information relevant to the decision, retain it long enough to decide, weigh it, and communicate their decision.

This is in accordance with the Queensland Capacity Assessment Guidelines 2020 and the Powers of Attorney Act 1998 (Qld).

What to expect

Different medical and psychiatric conditions may affect a person's capacity to make decisions. Dr Siddle will perform a thorough psychiatric assessment to determine the presence of illness and its effect on the ability to make informed decisions.

Testamentary capacity

Capacity to make or alter a will. The test in Banks v Goodfellow, as applied by Australian courts. Contemporaneous and retrospective opinions.
Testamentary capacity

Financial capacity

Capacity to manage financial affairs generally, or to make a specific transaction. For QCAT administration applications and challenges to gifts, loans and transfers.
Financial capacity

Enduring power of attorney

Capacity to make, change or revoke an enduring power of attorney, under section 41 of the Powers of Attorney Act 1998 (Qld).
Enduring power of attorney capacity

Now, or after the fact

Contemporaneous assessment

The person is assessed at or near the time they make the decision. This is the stronger evidence. It is most useful when a will or enduring document is being prepared and there is any reason to think it may be questioned later: age, illness, a change from earlier wishes, or family disagreement.

Retrospective assessment

The person has died or can no longer be assessed, and the question is what their capacity was at an earlier date. The opinion is built from medical records, witness accounts and documents from the time. Dr Siddle will say how confident the evidence allows her to be, and where it does not allow a view at all.

What happens

  1. Brief and documents. The referring party will send the claim file, medical records, prior reports, and the specific questions needing to be answered.
  2. Interview. The independent assessment will usually take one to two hours. The subject is informed of the independence of the assessment and that the report will go to the referrer. Assessments are conducted in Dr Siddle's rooms at Spring Hill or by telehealth. Home visits are not undertaken.
  3. Report. Dr Siddle will provide a report including the assessment and her response to the specific questions. Reports are usually provided within one week.

Refer a capacity matter

Send the letter of instruction and the file. You will be contacted by our team.

Send a referral