Macquarie University
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The capacity conundrum: how lawyers assess their client's decision-making capacity

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posted on 2022-03-28, 17:17 authored by Lise Barry
This research aims to improve the way lawyers assess the legal capacity of older Australians. The key contributions of this project are to offer new empirical depth to the analysis of lawyers' practice in New South Wales, and to recommend changes to legal practice that will uphold older people's rights to legal decision-making and help prevent elder abuse. Older people can become victims of abuse when making significant legal decisions they do not understand. Lawyers who prepare and witness legal documents can help safeguard against abuse by ensuring that older clients have the requisite capacity for legal decisions. However, this process must account for a client's personal circumstances and vulnerabilities, as well as the complexity of decisions to be made. At present, there are significant problems with the content and application of laws, tools and guidelines used by lawyers to address legal capacity in their everyday practice. This research applies a tripartite theory of elder vulnerability - encompassing inherent, situational and pathogenic aspects - and a broad human rights approach to elder law to fill these gaps by providing a much-needed critical lens through which to view capacity assessment. This theoretical framework forms the foundation for an in-depth empirical investigation of the law, tools and guidelines for capacity assessment through a directed content analysis of capacity complaints made to the Office of the New South Wales Legal Services Commissioner between 2011 and 2013. The research findings reveal that many lawyers demonstrate poor understanding of cognitive impairment, compounded by deficiencies in legal interview and capacity assessment skills. Family conflict was also found to be a factor driving complaints. This thesis concludes by making recommendations for improvements to the training and regulation of lawyers in capacity assessment, and suggests an agenda for future research.


Table of Contents

Part One. Thesis overview. Chapter 1. Synopsis Chapter 2. The law and practice of assessing capacity for legal decisions Chapter 3. Human rights and vulnerability framework Chapter 4. Research methodology -- Part Two. Chapter 5. Human rights and substitute decision-making Chapter 6. Law and guidelines Chapter 7. Empirical findings and analysis Chapter 8. Elder mediation -- Part Three. The future of capacity assessment. Chapter 9. Capacity assessment : current state and future directions Chapter 10. Conclusions -- Appendices -- Bibliography.


Thesis by publication. Bibliography: pages 233-261

Awarding Institution

Macquarie University

Degree Type

Thesis PhD


PhD, Macquarie University, Faculty of Arts, Macquarie Law School

Department, Centre or School

Macquarie Law School

Year of Award


Principal Supervisor

George F. Tomossy

Additional Supervisor 1

Peter Rogers


Copyright Lise Barry 2018. Copyright disclaimer:




New South Wales


1 online resource (vii, 261 pages) tables

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