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What is ‘capacity’ in civil litigation?

Capacity is a legal term referring to a person’s ability to exercise the decision-making process. An adult person is presumed to have the legal capacity to make decisions for themselves unless proven otherwise.

Capacity for a person for a matter, means that the person is capable of:

  • understanding the nature and effect of decisions about the matter; and
  • freely and voluntarily making decisions about the matter; and
  • communicating the decisions in some way.

An adult with capacity has the right to make legally recognised decisions about their life, such as property, money management, medical treatment, or lifestyle decisions. If an adult has impaired capacity for making a particular decision, a substitute decision-maker may be required to make the decision for them.

You must have legal capacity to:

  • make a contract;
  • get married;
  • make a will; and
  • vote

In civil proceedings, a person is under a legal incapacity if they are under the age of 18 or are a person with ‘impaired capacity’. In circumstances where there is doubt about the capacity of a person who is a party in court proceedings, it is necessary for the issue of capacity to be decided to ensure their proper protection.

Who decides the issue of capacity?

The capacity of a person involved as a party in litigation can only be decided by the Queensland Civil and Administrative Tribunal (QCAT), or the Supreme Court. QCAT has exclusive jurisdiction for the appointment of guardians and administrators for adults with impaired capacity.

Both QCAT and the Supreme Court can transfer the proceedings to the other at their own initiative or on the application of an active party to the proceeding.

How is the issue of capacity determined?

The issue of capacity is determined at a hearing where a wide range of evidence is given, including from the adult, other parties and any information or reports from medical professionals involved with the adult. It is important to note however, that capacity is a legal concept and there is no definite scientific test to use when assessing whether a person meets a particular capacity standard. Additionally, a lack of capacity in one respect does not necessarily warrant a lack of capacity in other respects. For example, a person can lack capacity to manage their financial affairs but still have capacity to make a will.

If an adult has capacity, then the Tribunal lacks jurisdiction to make any order with respect to that person.

What are the consequences of a finding of incapacity?

If the Supreme Court or QCAT finds that a party is a person with impaired capacity, they become a person under a legal incapacity and may only start or defend proceedings by a litigation guardian.

If a party to a proceeding becomes a person with impaired capacity during the proceeding, a person cannot take any further step in the proceeding without leave of the court, until a person files written consent in the Registry to be the plaintiff’s litigation guardian, and only then if the person follows the court’s directions on how to proceed.

Do I need legal advice?

You may need legal advice if you:

  • need to know whether a child, or an adult with an impairment has legal capacity in a particular situation;
  • want to appeal the appointment of a guardian or administrator;
  • want to appoint a guardian and / or administrator for a person with impaired capacity;
  • need a declaration of capacity for an adult;
  • have concerns about someone acting in their role of power of attorney for a person with impaired capacity; and
  • have questions about an order made by QCAT concerning an adult with impaired capacity.


Next Steps

If you believe you may need the assistance of a litigation lawyer, contact Klein Legal today.  Klein Legal are experts in litigation and dispute solutions.

This is general information only and does not constitute legal advice.

If you or someone you know wants more information or needs help or advice about this topic, please contact us on (07) 5458 6855 or email