Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
-
What if I am assessed as lacking capacity?
- If you are assessed as not being able to make a decision someone will be appointed to act on your behalf. They are often referred to as the substitute decision maker.
- They will need to make the decision and should discuss it with you.
- At times they may need to make a decision that you do not particularly like.
- Even though you may not like the decision it must still be made if it is in your best interests.
- If you are worried that you may lack capacity at some time in the future you can appoint someone you trust to look after your affairs now. Their powers will only come into action at the time when you need them.
>> Read more & related FAQ's
-
What can I do if I am unhappy with the decision about my capacity?
- Help is available if you are unhappy with a decision that has been made about your legal capacity to make a decision or a decision made in your best interests by your substitute decision maker.
- There is a guardianship tribunal in each state and territory. They are guided at a Commonwealth level by the Australian Guardianship and Administration Council: http://www.agac.org.au/.
- The organisations that may be able to help you are:
- in NSW:
- in the ACT:
- in Victoria:
- in the Northern Territory:
- in South Australia:
- in Queensland:
- in Tasmania:
- in Western Australia:
- You can find out more about the powers and procedures of the tribunals in our topic on Tribunals & Public Sector Appeals.
- Alternatively you can speak with a lawyer who can explain your rights and protect them against anyone who does not have your best interests at heart.
>> Read more & related FAQ's
-
What standard of care is appropriate for persons with a disability?
- The standard of care expected will vary according to the circumstances of the particular case.
- It will be determined by the industry and professional standards, the skills and training of the care worker, community standards and recent court decisions in similar cases. The standard of care is not determined simply by what a person with a disability demands or believes it should be.
- You are entitled to all of the same rights as anyone else in the community who does not have a disability.
- You may even be entitled to additional support that is not available to others in the community. This additional support is provided to counteract any imbalances that exist in the legal system between those with disabilities and those without and particularly in criminal matters.
>> Read more & related FAQ's
-
Can I get support if I am accused of a crime?
- People with a disability and in particular those with an intellectual disability are considered to be particularly vulnerable.
- You are entitled to additional assistance and support if you are charged with a crime.
- This means you must be given the right to have a support person with you at the police station and during the interview.
- Your support person can make sure the interview is conducted fairly and according to law.
- They can also help notify the police of any communication problems that you might be experiencing.
- The police must ensure that you understand your right to remain silent.
- If you do not understand something that a police officer has said you can ask them to repeat it as many times as necessary. They might need to rephrase the sentence in a different way that is easier to understand.
- Sometimes when you are talking with police they may not realise you have a disability. You should make sure that the police know this.
- If the police fail to provide you with the support you need then they may not be able to use your police interview as evidence in any criminal proceedings.
- If you need legal representation our LegalPlan™ membership will allow you to ask criminal lawyers to handle your matter for a Fixed Fee Quote.
>> Read more & related FAQ's
-
Can parents prevent a person with a disability from having a sexual relationship?
- People with a disability who are or over the age of consent can decide for themselves whether to have a sexual relationship. A parent cannot normally prevent this.
- The individual is also free to decide whether they use contraception or not.
- The only situation when a person can take action to prevent another entering a sexual relationship is if they know there is no consent or in some situations where the sexual partner is in a position of authority or responsibility such as a carer or guardian.
- You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice.
>> Read more & related FAQ's
-
What happens if a person does not have the capacity to decide about medical treatment?
- If a person does not have the capacity to decide about medical treatment an application will need to be made to the Guardianship Tribunal to determine who should make the decision.
- When a person with a disability does not have the capacity to make a decision about terminating a pregnancy for example the decision can only be made by the Guardianship Tribunal or the Supreme Court.
- The Tribunal can consent to the sterilisation of a person with a disability only if it is satisfied that it is necessary to save the person’s life or to prevent serious damage to their health and that it is the most appropriate treatment in all circumstances.
- It is important to recognise the equal rights of people with disabilities. They have the same rights and independence as everyone else in the community. Sometimes they may need assistance in giving effect to those rights or understanding the impact of their choices.
- You can use our free and anonymous Ask a Lawyer service if you have a particular issue you want to know more about.
>> Read more & related FAQ's
-
When may a contract be invalid because of incapacity?
- If a person or organisation has doubts about another person’s capacity the safest thing to do is:
- to go through the contract with the person; or
- offer them the opportunity to bring a support person to do this; or
- require them to get independent legal advice before they sign anything. This is particularly important if the transaction is for a large amount of money or otherwise concerns their financial affairs.
- In some circumstances a transaction or contract with a person may be set aside if:
- the person lacked capacity at the time they signed it;
- the other person knew or ought to have known the person lacked capacity;
- the person can give back all or most of the benefits received; and
- any property the person lacking capacity wants back has not be sold on to a third person where the third party was not aware of the capacity issue.
- There is also support under general consumer law. See our Consumer Law topic for more information.
- If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.
>> Read more & related FAQ's
View more Information on Disability