OUTLINE OF MATTERS TO CONSIDER WHEN REQUESTING A MEDICAL
ASSESSMENT OF A PERSON’S COGNITIVE CAPACITY
Prepared by the Law Institute of Victoria Elder Law Committee
1. Appointment for the assessment
Confirm appointment arrangements:
•
person to be assessed
•
appointment
•
o
date
o
time
o
location
any special arrangements such as the need for:
o
interpreter
o
disability access
o
communication tools, such as a voice amplifier
If the appointment has not been made, identify who will be responsible for making the
appointment.
2. Background
Personal background
•
explain who your client is (it will not necessarily be the person being assessed)
•
provide personal information about the person being assessed, for example, age,
relationship status, accommodation and family members. Consider what other
information is necessary for the purposes of the assessor.
Medical history and current medical conditions
•
provide copies of relevant medical reports, including a summary of the medical
history
•
if copies cannot be provided, identify other assessments that have been conducted
•
consider the purpose of providing such medical reports:
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o
is the person reviewing prior assessments – if so, the assessor may require
previous reports
o
is the person conducting an independent assessment – if so, it may be
preferable not to provide copies of other medical reports
Financial background
If the assessment relates to the person’s capacity to manage his or her financial/legal
affairs, provide information about the person’s assets and income. The assessor will need
to question the person about his or her understanding of his or her estate. The complexity
of the person’s financial/legal affairs will also be relevant to an assessment of the
person’s ability to manage his or her financial affairs.
Legal proceedings and current orders
•
explain why the assessment and report is requested
•
explain who the other parties to the proceeding are and whether or not they are legally
represented
•
provide information about the timeframe/urgency of the assessment
•
outline any orders currently in place relevant to the assessment
•
explain the nature and status of the legal proceedings or the legal issue, for example,
o
it is an application before VCAT for a declaration of invalidity in relation to
an enduring power of attorney (financial) on the basis that the donor was not
competent at the date of execution; or
o
the person being assessed wishes to make a will and there is a question as to
whether he or she has testamentary capacity.
3. Scope of our request
Type of assessment
Specify the type of assessment you require and the questions which need to be addressed,
for example:
•
does the person suffer any cognitive impairment, and if so, what is the nature and
extent of that impairment; and
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•
does the impairment affect the person’s ability to make reasonable decisions in
relation to:
o
his or her financial and legal affairs; and
o
his or her personal affairs
The legal test to be applied by the tribunal or court
Outline the statutory or common law test relevant to the assessment, for example:
•
the statutory test for executing an enduring power of attorney set out under s 118
Instruments Act 1958 (Vic)
•
the common law test for testamentary capacity1
Guidelines for undertaking the assessment
Provide information about how the assessment is to be conducted, for example:
•
the need for the assessment to be conducted without other parties present, particularly
if there are concerns about the person being vulnerable to the influence of other
persons; and
•
request that the assessor provide any information about the methodology adopted for
the assessment.
1
See New South Wales Attorney General’s Department, Capacity toolkit: Information
for government and community workers, professionals families and carers in New South
Wales, (Sydney 2008). This reference contains some useful guidelines on the conduct of
different types of capacity assessments, including examples of non-leading questions
which may assist the assessment process. Assessors can be referred to the on-line version
at
www.lawlink.nsw.gov.au/lawlink/diversityservices/LL_.DiversitySrvces.nsf/pages/divers
ity_services_capacity_toolkit (accessed 9 July 2009).
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4. Administrative matters
Qualifications and expertise
Request that the assessor provide details about their qualifications and expertise,
including curriculum vitae.
If the matter is before VCAT or another jurisdiction provide the relevant Practice
Direction in relation to expert evidence, for example, the VCAT Practice Note –
PNVCAT 2 ‘Expert evidence’.
Attendance in Court to give evidence
Advise the assessor that they may be required to attend VCAT (or other tribunal or court)
to give evidence regarding their opinion and report. Provide details of how the assessor
will be advised of this.
Fee
Confirm fee arrangements, including details of who is to be invoiced.
Enclosures
Enclosures may include:
•
medical reports
•
court orders
•
practice directions
•
other documents
5. Confidentiality
Advise the assessor to make contact if they have any concerns about who will have
access to the report.
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