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A client’s capacity is questioned: what next?

Oct 6, 2020

Carr & Co

By Jamie Davidson, Lawyer

Family breakdown and the consequent legal proceedings which may follow is one of the most distressing life events people can experience. The reality is that anxiety, depression and other forms of mental illness are common amongst parties who find themselves in the family court system. The range of extreme emotions familiar to those going through separation can cloud one’s ability to think rationally. Representing clients in a volatile state is consequently a known element of working in family law.

However, alarm bells crop up when a client’s ability to give instructions or make decisions at all becomes an issue.

What is legal capacity?

To have legal capacity is to have the ability to understand and give legal consent to actions or arrangements.

The Family Law Rules 2004 (Cth) expresses a person lacking legal capacity as a “person with a disability”, defined as a person who, because of a physical or mental disability:

  1. does not understand the nature or possible consequences of a case; or
  2. is not capable of adequately conducting or giving adequate instruction to the conduct of the case.

For obvious reasons, it is extremely important that a client is deemed to have legal capacity throughout court proceedings. For this reason, lawyers have a professional obligation to raise any capacity concerns they may have without delay.

What are the red flags?

While it is not a lawyer’s role to be an expert in assessing a client’s mental capacity, it is imperative to be able to notice any warning signs and undertake a preliminary assessment.

In some circumstances mental incapacity may be very clear, such as where a diagnosis of dementia, brain injury or intellectual disability exists. In other cases, it will not be so obvious that a person lacks capacity.

Some red flags which may point to the need for further enquiries, include when:

  1. a client experiences memory loss;
  2. a client seems to have limited ability to engage in meaningful interactions;
  3. a client is in hospital or an aged care facility when giving instructions;
  4. a client is always accompanied by someone and is not confident giving instructions on their own behalf;
  5. a client does not have the ability to repeat advice or ask any relevant questions about their case; or
  6. a client’s personality seems to have changed or deteriorated without reason.

Assessing whether someone lacks capacity is complex, especially in such an emotionally heightened field as family law. It is important to note that a person can not be assessed as lacking legal capacity just because they decide in a way viewed as reckless or wrong. The assessment should be based on a person’s decision-making ability and not the decision they make.

What happens when capacity is questioned?

When concerns are raised about a person’s competence to be participating in their legal proceedings, a medical opinion should be sought as soon as possible. It is a matter for the Court to decide whether a person lacks capacity and so they should be provided with the expert evidence to enable them to make this determination.

If the Court determines that a person does not have legal capacity, it will make an order that a case guardian be appointed.

What is a case guardian?

A case guardian is a person who steps into the shoes of a person that has been determined to lack capacity and conducts the case in their best interests.

The requirements are that this person is:

  1. over the age of 18 years;
  2. has no interest in the case that would be adverse to the incapacitated party;
  3. can fairly and competently conduct the case; and
  4. has consented to act as the case guardian.

A case guardian is appointed by way of an application made either by one of the parties, the proposed case guardian themselves, or the Court. The material filed in support of the application must prove that the proposed case guardian meets the four criteria mentioned above and detail how the party’s legal costs will be managed.

In most circumstances, a case guardian is a family member, advisor or close friend. Even if a party lacks the capacity to conduct litigation, they may still be able to nominate their preferred choice of case guardian.

The role of the case guardian

A case guardian is responsible for commencing, conducting or settling any legal proceedings on the incapacitated party’s behalf. At law, a case guardian is recognised as the substitute decision maker for the person lacking capacity. They are to attend to everything the party would have formerly been required to do themselves, such as giving instructions, attending court or dispute resolution events and executing documents.

If the situation changes and capacity is regained, it is again, up to the Court to determine whether to revoke the case guardian or not. The Court will consider the stage of the litigation, the reasons for the request and whether discharging the case guardian will result in unacceptable costs or delays.