Capacity and consent
A person who has a disability can enter into a contract if they have ‘capacity’ to do so. To have capacity means that the person understands the nature and effect of the contract.
Where the contract is in writing, it is advisable for the witnesses to keep notes as to why they were satisfied that the person understood the nature and effect of the contract. If a person has an administrator appointed under the GA Act, any contract that person enters into is void (s 52). However, if the other party to the contract did not know that the person had an administrator they may be able to enforce the contract.
For further information, see ‘4 Legal capacity’ in Chapter 7.1: How contract law works.
Wills and testamentary capacity
A person with a disability, like anyone else in the community, can make a will as long as they have the ‘capacity’ to do so. The Wills Act 1958 (Vic) provides two ways for people who have a disability that affects their capacity to have a will.
1 Individual makes own will
People can make their own will, provided they understand:
- what it is (a document saying what is to happen to their property when they die);
- in general terms, the amount and type of property they have; and
- in general terms, their moral obligation to provide for persons such as spouse, children and certain family members.
This is described as having testamentary capacity. The will should be written in simple language, although it is not necessary for the person to be able to read or write. It is most important that when a person with a disability that affects their cognitive capacity is making a will a doctor is present who can testify to testamentary capacity, in order to prevent later disputes about the validity of the will. The best practice is to have a doctor as one of the witnesses to the will, and to have that doctor swear an affidavit that, at the time of making the will, the person understood the nature and effect of what they were doing. The will should be made an exhibit to the affidavit.
If the person making the will is a represented person under the GA Act (see Chapter 8.6: Guardianship and medical treatment), it is essential to obtain a medical opinion as to their testamentary capacity. If the represented person has testamentary capacity, a copy of the will and affidavit should be sent to the person’s guardian and/or administrator, so the guardian and/or administrator can take into account the intentions expressed in the will when managing that person’s affairs.
It is a good idea to use a lawyer (and preferably one who has experience in working with people who have disabilities that affect their cognitive capacity) to draft the will. This can avoid many later problems and possible disputes. A community legal centre may be able to suggest a lawyer who can draft a will; some community legal centres provide a will-making service, usually where a simple will is required. The Law Institute of Victoria (www.liv.asn.au) has a list of wills and estates specialists.
2 Will made on behalf of individual under authority of Supreme Court
The second way a will can be made is for a person to apply to the Supreme Court for authority to draw up a will on behalf of a person who does not have legal capacity to make their own will. This is an expensive process and would be inappropriate in cases of small estates.
The court must be satisfied that:
- the person does not have legal capacity;
- the will, as drawn up by another person, reflects what the person would most likely want if they did have capacity; and
- it is reasonable in the circumstances to approve the will.
A community legal centre may be able to suggest a lawyer who can help with this application. See Chapter 2.4: Legal services that can help, or call Villamanta Disability Rights Legal Service (see ‘Contacts’ at the end of this chapter).
Anyone drawing up a will should be aware of the legal responsibility of parents of people with disabilities to provide for their children in their wills. Parents who make little or no allowance in their will for their child who has a disability may be subject to an application for testator’s family maintenance. For further information, see Chapter 9.3: Wills.
Consent to medical treatment
In general, a person who has a disability is able to consent to medical treatment if they are capable of understanding the nature of the treatment, why it is being given and how it will be administered. This is called informed consent, and is discussed in more detail in Chapter 9.1: Health and the law. Specific types of informed consent required under the MH Act are discussed in Chapter 8.4: Mental illness.
If a person who has a disability is not capable of giving informed consent, there are specified procedures for deciding who is allowed to give consent on their behalf. For more information, see Chapter 8.6: Guardianship and medical treatment.
Decisions regarding special medical procedures for young people (under the age of 18) with disabilities affecting their cognitive capacity continue to raise concerns regarding reproductive rights and sterilisation. In Victoria, these procedures are decided on application to the Family Court (generally by a parent or guardian) under the Family Law Act 1975 (Cth), having regard to the best interests of the child (s 67ZC). (For Family Court procedures, see Chapter 4.2: Parental responsibilities and child support.)
The sterilisation of minors
In 2004, the Commonwealth and state attorneys-general canvassed options for creating national consistency in decisions relating to sterilisation of minors with a decision-making disability. Each state government distributed a draft Bill for comment in late 2006. There was significant criticism of the Bill and the matter was returned to a further meeting of the attorneys-general Standing Committee in 2008, where the item was removed from the agenda. Lobby groups are lobbying for the issue to be returned to the agenda and are seeking universal legislation to prohibit the sterilisation of any child, unless for life saving necessity.
Taking instructions from clients who have cognitive impairment
It is, of course, important for all legal practitioners to be adequately instructed by their client. When working with clients who have a cognitive impairment, a conscious effort needs to be made to ensure that they are given ample support and opportunity to make informed decisions. Impairment may be permanent or sporadic as a result of an intellectual disability, some types of mental illness, acquired brain injury, dementia or the latter stages of an illness or disease, such as multiple sclerosis and HIV/AIDS related dementia.
Of course, not all people with these disabilities will have a cognitive impairment. The central issue for those providing legal advice and representation to people who have cognitive impairment is the degree to which the person can demonstrate their capacity to provide instructions. This generally involves demonstrating a reasonable understanding of:
- their current circumstances and the circumstances leading them to need legal advice and representation;
- their legal and non-legal options and the risks and benefits of these options; and
- their role in providing instructions to their legal advisor.
Following are suggested ways to assist in ensuring your client is able to provide you with accurate instructions. They may apply to a range of services working with a client with cognitive impairment, and not just to legal practitioners:
- Allow sufficient time to conduct an interview. This means spending time explaining the law and the options available to your client, and eliciting both their understanding of your advice and what they wish to do. This time is also well spent in assessing your client’s skills and capacity to instruct and developing their confidence in talking to you.
- Identify any limitations in literacy skills and respond accordingly. Any written material should be carefully explained to your client. Questions or comments may need to be put in a number of ways to ensure the client understands their content.
- Be aware that people perceived as authority figures may easily and unwittingly intimidate some (but not all) people who have a cognitive impairment. For example, be mindful of body language, and ensure that questions are not put in a way that suggests there is a correct or incorrect answer, or an answer you would prefer. Note that people who have lived in institutions may be in the habit of saying ‘yes’ to questions unless they are given an opportunity to feel confident that they are free to express their real opinions:
- Take responsibility for explaining things in an accessible and easily understandable way. Ask the person to tell you what they have understood, so you can do a better job if necessary.
- Record relevant events as soon as possible after they have occurred, particularly where poor memory may exist.
- Speak simply. Avoid jargon, abstract concepts and long-winded explanations. Explanations should be given in concrete terms. Use drawings or other methods of representation if necessary.
- Where appropriate, try to ensure that a support person or advocate is available to assist with effective communication between you and your client. Such a person will usually be familiar with any difficulties your client may have in responding to questions or providing an account of events. Be clear on the relationship between yourself, the support person and your client and that you are acting on behalf of your client and not on behalf of the support person or advocate. It is important to get instructions directly from your client to ensure you are acting on their wishes.
Sometimes a client may be unable to provide you with instructions so that you can act on their behalf. There may be a substitute decision-maker to provide instructions on their behalf. This does not apply in criminal matters under the CMI Act.
If the person has an administrator appointed, the administrator may have authority to provide you with instructions (s 58B(1) GA Act). The capacity of the administrator to instruct you will depend on the authority granted at the time of their appointment.
If there is no administrator appointed, you may consider it necessary for someone appropriate to apply to the Guardianship List of VCAT for one to be appointed.
Some courts and tribunals provide other mechanisms for bringing actions. Look at the relevant legislation for the tribunal or court to see if formal appointment of a ‘litigation guardian’ or ‘next friend’ is required, or whether another person is able to bring the action on behalf of your client.
Liability of litigation guardians
Litigation guardians can be held personally liable for the costs of the matter before a court or tribunal.
The only circumstances where instruction should be taken from a person other than your client are those where a person who has legal authority to instruct on behalf of your client with cognitive impairment has been appointed, and is acting in accordance with what you believe to be your client’s wishes and best interest. If you believe that the instructions you receive from your client’s advocate or legally authorised person are not the client’s wishes or in their best interest, you should consider challenging the advocate’s authority in the proper forum, which is generally the Guardianship List of VCAT.
For more information about specialist legal services that deal with disability issues and assist clients who have disabilities, see Chapter 8.2: Disability: Asserting your rights.