A therapeutic approach to assessing legal capacity in Australia

Purser, Kelly, Magner, Eilis, & Madison, Jeanne (2015) A therapeutic approach to assessing legal capacity in Australia. International Journal of Law and Psychiatry, 38, pp. 18-28.

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Australia lacks a satisfactory, national paradigm for assessing legal capacity in the context of testamentary, enduring power of attorney and advance care directive documents. Capacity assessments are currently conducted on an ad hoc basis by legal and/or medical professionals. The reliability of the assessment process is subject to the skill set and mutual understanding of the legal and/or medical professional conducting the assessment. There is a growth in the prevalence of diseases such as dementia. Such diseases impact upon cognition which increasingly necessitates collaboration between the legal and medical professions when assessing the effect of mentally disabling conditions upon legal capacity. Miscommunication and lack of understanding between legal and medical professionals involved could impede the development of a satisfactory paradigm. This article will discuss legal capacity assessment in Australia and how to strengthen the relationship between legal and medical professionals involved in capacity assessments. The development of a national paradigm would promote consistency and transparency of process, helping to improve the professional relationship and maximising the principles of autonomy, participation and dignity.

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ID Code: 66757
Item Type: Journal Article
Refereed: Yes
Additional URLs:
Keywords: Capacity assessment, Therapeutic jurisprudence, Enduring powers of attorney, Wills
DOI: 10.1016/j.ijlp.2015.01.003
ISSN: 1873-6386
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Australian Centre for Health Law Research
Current > Schools > School of Law
Deposited On: 30 Jan 2014 00:17
Last Modified: 29 Mar 2015 22:05

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