Capacity: Everything Lawyers Need to Know and Won’t be Afraid to Ask (Melbourne)

Friday, 21 July 2017 | Cost: $330

9.00am     Welcome
Chair:     Professor Carmelle Peisah

9.15am-10.15am     What is capacity?
Speaker: Professor Carmelle Peisah, psychiatrist
This session will address the concepts of both decisional capacity, and legal capacity; the human right frameworks underpinning capacity assessment, general principles relating to capacity assessment including the presumption of capacity task- and situation specific nature of capacity, and the concept of undue influence. These principles will be applied to a wide range of capacity contexts (e.g. powers of attorney, guardianship and administration/financial capacity and testamentary capacity, and contracts.    

10.15am-11am     Practical issues regarding capacity.
Speaker:     Professor Carmelle Peisah, psychiatrist
This session will promote the understanding of disorders which affect capacity, what an expert looks like and to how to engage the expert.   

11.00am Morning Tea

11.15-12pm  Capacity issues from a barrister's perspective
Speaker:    Andrew Verspaandonk, Vic Bar
This session will extend Professor Peisah’s session from a practising barrister’s perspective, with a focus on testamentary capacity and confirming the advice to lawyers as to how they should proceed in practice.  

12.00- 1pm Extending decision-making autonomy: Enduring powers of attorney, advance care directives and medical treatment decision making in recent Victorian legislation
Speaker:   Nick O'Neill, Capacity Australia
This session deals with capacity to make documents recognised in common and statutory law as effective either to set down decisions in relation to matters arising in the future, and/or appointing other persons to carry out or to make such decisions on behalf of the person who has made the document. Main points addressed will be:-
•    Why should solicitors be interested?
•    Starting point – capacity
•    What a maker (principal) must understand to make an EPA
•    The role of solicitors in making EPAs
•    Obligations of attorneys appointed in EPAs
•    Consequences for solicitors failing to meet the requirements of the Powers of Attorney Act 2014
•    Advance Care Directives (ACDs) and Substitute Medical Consent under the Medical Treatment Planning and Decisions Act 2016 (not yet in force)
•    Advance Care Directives
o    Instructional directives
o    Values directives
•    Medical treatment decision makers – appointed or automatic
•    Hierarchy of medical treatment decision-makers
•    The giving of treatment - Emergency treatment, palliative care,
•    Obligation to treat according to the ACD

Learning Objectives of the programme
1.    To familiarise lawyers with the concept of capacity and the human rights frameworks that underpin this concept;
2.    To familiarise lawyers with their statutory obligations and professional responsibilities to their clients in the area of capacity, particularly in regards to the making of EPAs;
3.    To familiarise lawyers with Advance Care Directives (ACDs) and Substitute Medical Consent;
4.    To provide practical assistance to lawyers in engaging expert opinion and understanding the role of the expert, including the expert’s approach to capacity assessment.

About the Speakers
Professor Carmelle PEISAH, Medical Practitioner and Old Age Psychiatrist, Conjoint Professor UNSW; Clinical Associate Professor Sydney University; Founder and president of Capacity Australia; Co-author with Mr Nick O’Neill of AustLii e-Book:“Capacity and the Law” (First and Second editions); Former professional member of the NSW Guardianship Tribunal; expert witness in over 300 cases relating to capacity locally and internationally; author of almost 100 publications and over 150 presentations, many on capacity

Nick O'Neill, LLB (Melb), LLM (Lond)
Nick O'Neill was born and bred in Melbourne where he completed an LLB (Melb), did his articles and was admitted to practise there in 1968. After nine years of legal practice in Papua New Guinea, he had 12 years of teaching at the Law Faculty of UTS before being appointed the foundation Deputy President of the NSW Guardianship Tribunal in 1989. He was the Tribunal’s President from 1994 to 2004. He is the co-author with Professor Carmelle Peisah of both editions of the ebook Capacity and the Law. From 2005 until the end of 2015, Nick was a director of Alzheimer's Australia NSW. He is a director of Capacity Australia. He is also the principal author of both editions of Retreat from Injustice - Human Rights in Australian Law.  


Double Tree by Hilton Hotel
270 Flinders St
Melbourne VIC 3000