Anyone assessing a person’s capacity to make a decision for themselves needs to use the two-stage test of capacity.

These are:

STAGE 1

Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?

Stage 1 requires proof. Examples of an impairment or disturbance in the functioning of the mind or brain may include the following: 

• Conditions associated with some forms of mental illness 
• Dementia 
• Significant learning disabilities 
• The long-term effects of brain damage 
• Physical or medical conditions that cause confusion, drowsiness or loss of consciousness 
• Delirium 
• Concussion following a head injury, 
• The symptoms of alcohol or drug use.

STAGE 2

Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? 

A person is unable to make a decision if they cannot: 

1. Understand information about the decision to be made (the Act calls this ‘relevant information’).

2. Retain that information in their mind
3. Use or weigh that information as part of the decision-making process,

OR 

4. Communicate their decision (by talking, using sign language or any other means). 

The first three points above should be applied together. If a person cannot do any of these three things, they will be treated as unable to make the decision. The fourth only applies in situations where people cannot communicate their decision in any way. 

Stage 2 can only apply if all practical and appropriate support to help the person make the decision has failed.