Understanding 'decision-making capacity' is essential in legal proceedings. The Court presumes capacity – you must prove otherwise.
Decision-making capacity is the ability to understand information, make decisions, and communicate them. A person may lack capacity in some life areas but not others. For example, someone with advanced dementia may have very short-term memory, while someone with early-stage Alzheimer's may discuss treatment options with their doctor.
It means making informed decisions about one's life – understanding the situation, options, and consequences – and the ability to communicate those decisions.
To establish capacity, a person must be able to:
Capacity depends on the specific decision – not 'one size fits all'. It doesn't require understanding every word but understanding what the decision is about and its effects. People need support to understand decisions and analyse options.
Capacity can change over time – temporarily (e.g., during illness) or permanently (e.g., dementia). If someone lacks capacity, a judge can issue a Personal Order to support decision-making, typically for medical and living arrangements.
In New Zealand, legal capacity is the ability to make and be bound by legally significant decisions (e.g. contracts, wills). It's the right to exercise legal agency with legal consequences.
The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) says everyone has equal legal capacity, regardless of disability.
Summary: difference between 'decision-making' and 'legal' capacity
Legal capacity differs from decision-making capacity. Decision-making capacity is the cognitive ability to exercise rights; legal capacity is the ability to act in legally binding ways. Legal capacity is a legally defined status; decision-making capacity assesses ability to make informed decisions in specific situations.
In New Zealand, everyone has legal capacity, but decision-making capacity is presumed until proven otherwise. If someone lacks decision-making capacity, their decisions may not be binding if the other party knew of their disability, though this is difficult to prove.
If someone has decision-making capacity, the Courts are unlikely to intervene, even for unwise decisions. Courts set a high threshold for establishing lack of capacity. The Protection of Personal and Property Rights Act (PPPR Act) emphasises the least restrictive intervention and enabling individuals to develop capacity.
Individuals have the right to make their own decisions, even unwise ones. Courts won't override choices simply due to disagreement—exceptions involve significant risks of harm or exploitation.
Respecting autonomy means allowing personal choices, even if not in others' best interests or contrary to expert advice. Courts ensure individuals can make informed decisions without undue infringement. While courts can intervene for incapacity or abuse, they use minimal restriction to empower individual decision-making.
