Capacity And The ‘Law of Decisions’
For many, the general purpose of the law is to enforce an outcome in a court. For example, a criminal being handed a custodial sentence for a crime that they have committed or a business being fined substantial monetary sums for breaches of their contractual obligations to another company.
However, it should not be assumed that the outcome to the case is the only thing on a lawyer’s mind. In practice, the client’s capacity to make decisions in the first instance is of fundamental importance - whichever area of law is involved. Capacity (in other words, the ability of an individual to understand an upcoming decision, and the ability to retain information in order to ‘weigh it up’) must always be a key concern for anyone who is advising a client on making a legally-binding decision.
Any responsible legal representative will have to satisfy themselves that their client understands the decisions they need to make, and the possible implication(s), before actually advising them.
You may be asking yourself why I have chosen to write about this. The answer is twofold. Firstly, to attempt to dispel the detrimental image of the lawyer who only works in order to achieve the outcome of the case, with disregard for any capacity issues at hand. Any professional you choose to use should have guidelines and procedures in place to ensure that they look at each client’s needs individually to ensure that adequate measures are taken for that individual.
Secondly, working in a Legal 500 firm with a highly accredited Private Client department, we ensure that each client has their individual needs met. Our Firm ensures that advice is comprehensible, in all areas of law that we deal with, so that you can understand the decisions you need to make.
In essence, there is always a capacity question to answer, whatever the decision is about. If you have any concerns over a decision you are preparing to make, or are concerned over someone else’s capacity, ensure you pick a legal representative who is not only focused on the outcomes, but ensures that your decision is going to be reached with all the considerations taken into account.