Capacity Toolkit

Checklist Overview

Introduction Purpose Guidance (not legal advice) Definition of capacity Legal test for capacity

Key Practice Points Presumption of capacity Capacity is decision/time specific Assess the ability NOT the decision Supported decision making Substitute decision making Tikanga Māori & cultural diversity Form of assessment Who should carry out assessments

Capacity Assesment Overview Preparing Assesment Interview After the Interview

The Legal Framework Overview Mental capacity law Relevant legal test PPPR Act : capacity thresholds Activating EPOAs Making EPOAs HDC Code: capacity to consent to treatment Right 7(4) of the HDC Code Capacity to make a Will Refusal to undergo assessment

Useful Resources Legal resources Education videos Cultural competence International guides to assessment Authors & Acknowledgments

CAPACITY TO MAKE A WILL

The essential elements of capacity for making a will (testamentary capacity) have remained unchanged since the decision in Banks v Goodfellow(1870) LR QB 549; Woodward v Smith [2009] NZCA 215.

This requires that the person understands:

the nature and effect of making a will;
the extent of the property which the person has for disposal; and
the moral claims of potential beneficiaries when making the will

The will-maker must have the requisite mental capacity at the time they execute the will. Susceptibility of the will-maker to undue influence or the extent to which they have suffered from a serious mental illness, immediately before and subsequent to, making a will, may be relevant to legal grounds in challenging whether the will is valid.

A capacity assessment may be required for a person subject to a property order under the PPPR Act. There is a presumption of capacity.to make a will even if the person is subject to a property order. The person or their property manager may make a will only with the permission of the Court: PPPR Act, ss 54 and 55.