Relationship between legal capacity and mental capacity

Legal and mental capacity are two distinct entities. How do they both relate to each other?

Pick an accordian for the correct answer.

Article 12 of the UNCRPD says that a person's decision-making ability (mental capacity) is not the same as the legal capacity of a person. In NSW, a person's legal capacity should not be diminished until every attempt is made to assist or support the person to make their own decision. This is supported decision-making. NSW law aims to ensure that a person always has legal capacity regardless of their level of decision-making ability (mental capacity).

Where supported decision-making does not enhance a person's mental capacity (ability to make a decision), another person may need to help them access their rights under the law. This would be for the shortest time possible and in a specific area of decision-making. This is substuitute decision-making and only occurs as a last resort. It should only occur when the consequences of the decision are significant and other informal methods to resolve the issue have been tried.