Victorian Current Acts

POWERS OF ATTORNEY ACT 2014 - SECT 4

    (1)     For the purpose of this Act, other than Part 2, a person has capacity to make a decision as to a matter ( decision making capacity ) if the person is able to—

        (a)     understand the information relevant to the decision and the effect of the decision; and

        (b)     retain that information to the extent necessary to make the decision; and

        (c)     use or weigh that information as part of the process of making the decision; and

        (d)     communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

    (2)     For the purpose of subsection (1), a person is presumed to have decision making capacity unless there is evidence to the contrary.

    (3)     For the purpose of subsection (1)(a), a person is taken to understand information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.

    (4)     In determining whether or not a person has decision making capacity regard should be had to the following—

        (a)     a person may have decision making capacity for some matters and not others;

        (b)     if a person does not have decision making capacity for a matter, it may be temporary and not permanent;

        (c)     it should not be assumed that a person does not have decision making capacity for a matter on the basis of the person's appearance;

        (d)     it should not be assumed that a person does not have decision making capacity for a matter merely because the person makes a decision that is, in the opinion of others, unwise;

        (e)     a person has decision making capacity for a matter if it is possible for the person to make a decision in the matter with practicable and appropriate support.

Example

The following are examples of practicable and appropriate support—

        (a)     using information or formats tailored to the particular needs of a person; or

        (b)     communicating or assisting a person to communicate his or her decision; or

        (c)     giving a person additional time and discussing the matter with the person; or

        (d)     using technology that alleviates the effects of a person's disability.

    (5)     Despite subsection (4)(d), the fact that a person has made or proposes to make a decision that has a high risk of being seriously injurious to the person's health or wellbeing may, in conjunction with other factors, be evidence that the person is unable to understand, use or weigh information relevant to the decision or the effect of the decision.