Disability
3. Legal Capacity
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 14 Jul 2015
- All adults are presumed to be competent to give instructions to a lawyer.
- If a person has an intellectual disability or other cognitive disability like dementia it is necessary to consider whether that person has the legal capacity to provide instructions to a lawyer.
- With appropriate support from legal professionals and carers a person with an intellectual disability can be assisted to communicate so that they can prove they have the legal capacity to provide their solicitor with instructions.
- The legal test for competency is that a person is able to conduct their ordinary routine affairs. A person is not competent if there is a real risk that they would be disadvantaged in conducting their affairs themselves or that their money and property would be lost.
- A layperson cannot make this decision for a person with a disability. A professional assessment must be conducted to determine if they meet the required level of competency.
- If an intellectually disabled person is found not to be competent to give instructions in a legal sense a lawyer can assist their guardian or carer to put legal structures into place such as a trust to protect their interests and provide for them into the future.
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