Do I have to Attend FDR Mediation

Legal Capacity and Family Law

As the issue of mental health continues to gain more traction within the area of Family Law, at a practical level, and without holding the necessary expert qualifications required to properly identify and diagnose mental health conditions, at what point does a practitioner (legal or otherwise) determine if a client has the capacity to provide appropriate instructions?

Justice Power in PY v RJS & Others outlines the general legal test for capacity as follows:

  • Generally, a person is not shown to be incapable of managing his or her own affairs unless it can be shown otherwise. That is, a person is presumed to have legal capacity unless the following characteristics can be observed:
  • That he or she appears incapable of dealing, in a reasonable competent fashion, with the ordinary routine affairs of man and
  • That, by reason of that lack of competence, there is shown to be a real risk that either:
    • He or she may be disadvantaged in the conduct of such affairs or
    • That such monies or property which he or she may possess may be dissipated or lost.
  • It is not sufficient, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that the person does not deal with even simple routine transactions in the most efficient manner. That is, the person must understand the purpose of the transactions that they are carrying out in everyday life.

The “Client Capacity Sub-Committee” of the New South Wales Law Society has developed guidelines to assist practitioners concerned about the competency of their client to give proper instructions.  By way of summary, practitioners should be wary of the following:

  • Are you as the practitioner able to obtain proper instructions from your client after you have provided a brief summary / explanation of likely issues to them?
  • If your client has a diagnosable illness, is it likely to be a temporary or permanent impairment? If it is temporary or medication based, think about different ways in which you might obtain instructions (i.e. taking frequent breaks in conference, drawing diagrams).
  • If the issues needing clarification are minor and short term, can a friend or relative assist the client with providing instructions which are in the client’s best interests?
  • Will the client consent to a formal assessment of capacity by a specialist professional?
  • Should you as the practitioner cease to act? If at any time the practitioner has become the substitute decision-maker, he or she should make immediate arrangements to have a substitute instruction giver appointed.

Subject to any specialist evaluation of the client’s legal capacity, or should it be the case the matter is already in Court, it may be appropriate to appoint a “Case Guardian”.  This process involves filing an Application with the Court pursuant to rule 6.08 of the Family Law Rules 2004 together with an Affidavit in support containing the relevant evidence (i.e. short report from the client’s treating specialist regarding the client’s mental health and likely duration of any diagnosable condition).