Capacity for good decision-making

As professionals in family law we are constantly required to make assessments about our clients, their ability at that time to make the best decisions for themselves and their children, and what would be the most useful way we can assist them at that stage of their journey.


They come to see us in the midst of great change when their life has become chaotic, their future unknown. They are often struggling with the impact of separation on themselves as ex-partners, parents, friends and colleagues. They are overwhelmed by the grieving process and what they have lost, and cannot see a clear way forward to what they will need.


We must assess fairly quickly where they are at emotionally, financially and legally, to give them the information and support they will need to move forward in the best way. We will all be familiar with the client who is having difficulty working out what has happened to them in the past few days, let alone the ability to think about what must be sorted out in the short , medium or long term.


So how do we do this? Every situation is unique and the journey for each individual is different. Although we may use our experience and skills, and rely on instinct, there are tools and guidelines in the legislation to assist. The Mental Health Act 2014 and the Power of Attorney Act 2014, both establish a definition of capacity and very useful criteria. The Law Institute of Victoria also has a very useful Capacity Guidelines and Toolkit that can be found at .


Capacity is a legal concept and requires a level of intellectual functioning to make good decisions and to accept responsibility for these decisions. Information must be provided in a way that the client can understand, and at a time that they are able to absorb this. The assessment of the client must involve consideration of when they should be obtaining information, how it should be conveyed to them and in what form. Some clients need to be able to sit and talk things through over a lengthy time. Others may respond better to reading pamphlets and looking up information on websites, that they can do in their own time. Some may be visual learners and would benefit from watching videos or YouTube clips about what they need to know. Many do not absorb information well in an emotional state and need a variety of information provided in various forms and to be able to share this with others they are close to.


I have found that a good way to ensure that important information has been understood, is to ask that they describe to me what they have understood by the material provided. To give their own understanding means that they have to process the information, be able to remember it, weigh it up, and be able to communicate about this. To satisfy all these tasks goes a long way to demonstrating capacity for the right kind of decision making.


It is important to remember that our task as professionals is to assess the ability to take information on board and make decisions that are relevant to the issues they are being faced with. It is not our role to make these decisions for them, and they may have the requisite capacity but still make unwise decisions that they may live to regret. Another thing to remember is that capacity changes over time. It is often different very soon after discovering that a separation is occurring, from many weeks or months later when circumstances have changed substantially. Stress, strong emotion, alcohol and substance abuse, and mental health issues can all make a great difference.


Good advice I recently heard is to maintain a rounded picture of a person, and try to perceive issues from the client’s perspective! I would be grateful to hear of the experience of others in this area, strategies that have worked and tips for the future.

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