28 Feb Understanding Legal Capacity
When a client comes to us as family lawyers, they trust that we are going to act in their best interest. They trust that we are going to give them our best advice. And they trust that once we give them our best advice and present them with their best options, we will then take the steps they want us to take.
However, in order for us to understand the actions they want us to take, the client needs to give us ‘instructions’. ‘Instructions’ simply mean telling us what to do. Once instructions are given, we are required to act according to the client’s wishes on anything within our retainer. And as our client’s agent, we would always do just that.
But what about the situation where the client isn’t able to give informed instructions? In some cases, the client simply doesn’t have the ability to do that. In other words, they don’t have the legal capacity.
What is legal capacity?
Legal capacity is the ability to understand the significance of what you are doing. In other words, it’s understanding not just what you are doing but what the impact will be as well.
When a client has legal capacity, then they have the ability to take certain legal actions. These include entering into contracts, getting married and (importantly) giving their lawyer instructions. However, when a client does not have capacity, then they are not able to do those things because they simply don’t understand their significance.
What can cause a lack of capacity?
In our practice, we’ve seen many different types of clients who don’t have capacity to give instructions. Some examples are:
Clients who have lost capacity due to a degenerative disease like dementia or Alzheimer’s.
Clients who have suffered from an illness, accident or injury that has diminished their decision-making capabilities.
Situations where addiction or mental illness has impacted a client’s capacity.
Clients with a developmental disorder that has limited their ability to give us instructions.
The above are just a few examples. There could be a myriad of reasons why a client cannot give cohesive instructions. However, in the situation where we suspect there could be a lack of legal capacity, then we will perform a capacity assessment. This allows us to determine whether or not the client has legal capacity.
It is never assumed that a person doesn’t have capacity regardless of their history. A person could have legal capacity for some types of legal decisions and not for others. Similarly, a person might not have capacity during some stages of their matter but could have regained it during other stages.
A capacity assessment is a complex undertaking. For a Family Law matter, we use the test set out in Rule 11.08 of the Federal Circuit Court Rules 2001:
‘Person who needs a litigation guardian
(1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2) Unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.’
Each time we use the test, we apply different factors depending on that person’s unique situation. We may sometimes get medical advice about the client’s capacity from a doctor. We might also speak to family members, friends or other community supports.
The role of the litigation guardian
If we determine that a client does not have capacity to give instructions, there is an avenue available to continue negotiations and litigation. This is by appointing a ‘next friend’ or litigation guardian to assist that person.
In theory, the person appointed can be almost anyone. But in practice, it needs to be someone who is over eighteen years and is willing and able to fulfil the duties and obligations of a litigation guardian competently. Sometimes the most obvious choice – a parent of an adult child, for example – isn’t the best choice. Maybe they don’t feel comfortable or don’t want to attend court. Or maybe they simply can’t take the time away from work. In that case, perhaps an adult sibling would be a better choice.
Once appointed, the litigation guardian has a serious job. According to the FCFCOA the litigation guardian is required to ‘comply with all the obligations that the [impaired] party would have under the Family Law Rules’. They also have the power to ‘do anything for the benefit of the [impaired] party that the party would be ordinarily allowed to do in the proceedings.’ So they are essentially standing in the place of the client, taking into account all the factors in play and making decisions in their best interests.
How to appoint a litigation guardian
To have a litigation guardian appointed, we make an application to the court on the client’s behalf. As part of that application process, we will have to satisfy the court as to why the client needs assistance. The work we’ve done completing the capacity assessment will help to do that.
The court also has the power to appoint a litigation guardian on its own motion. It will do so if, during the course of proceedings, it comes to believe that the client lacks legal capacity and requires assistance.
Getting expert help – your expert family lawyers sunshine coast
As family lawyers, we are here to help. Our job is to help you get the best outcomes for yourself and your family. Sometimes, for clients who lack capacity for the short or long term, that may be through the appointment of a litigation guardian. Whatever the situation, our gentle team can help you manage the process with care and consideration.