What gives legal capacity to certain people? | Legal Advice from a Sunshine Coast Lawyer
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You can’t enter into binding legal arrangements, or sign a valid will or enduring power of attorney, unless you have the legal capacity to understand the nature of the transaction at the time you enter into it.
I’m John Gallagher from Argon Law and I want to talk with you about legal capacity of individual people.
To have legal capacity you must understand the significance of what you are doing.
It’s important to remember that capacity is not a fixed concept. At any given time, a person can have capacity for some types of legal decisions, but not others.
Capacity can be affected by attributes that are intrinsic to the person involved, like health conditions, or contextual factors, which may affect the extent to which decisions can be freely made.
Other important factors to remember when assessing capacity are that:
There are different tests for capacity depending on kind the instrument or transaction that is being entered into;
Doubts about capacity may be overcome by combining the right legal advice with other evidence which shows the attribute involved has a limited impact on the decision itself; and
Impairments to capacity don’t mean that capacity is non-existent, or that the wishes of the person to whom the decision relates, cease to be relevant.
On 30 November 2020, new laws commenced in Queensland that are relevant to the issue of capacity. These include new forms for the making of enduring documents, and changes to the principles for substituted decision making so they better reflect international law.
If you want to enter into a will, enduring power of attorney or an advanced health directive, or you have existing arrangements in place that need to be reviewed, feel free to contact us at Argon Law to discuss the matter, or have a look at our website.
Do you require legal advice? Contact Argon Law via the links listed below.
You can find us at http://www.argonlaw.com.au/.
Please feel free to contact us at [email protected] / 07 5443 9988
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