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

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.