---
title: "Capacity and instructions checklist"
url: "https://ailawframework.com/precedents/personal-injury-and-compensation/capacity-and-instructions-checklist"
type: "precedent"
site: "AI Law Framework"
id: "a21-capacity-and-instructions-checklist"
area_id: "A21"
kind: "checklist"
ai_level: "yellow"
version: 1
task_ids: ["A21-IN20261023-2", "A21-IN20261023-3", "A21-IN20261023-4"]
law_stated_as_at: "2026-10-23"
---

# Capacity and instructions checklist

> Checklist for whether the injured person can instruct on the decision in front of them today. It records observations and the support tried, and it does not certify that the person lacks capacity.

Canonical page: https://ailawframework.com/precedents/personal-injury-and-compensation/capacity-and-instructions-checklist  
Law stated as at: 2026-10-23

Site index for agents: https://ailawframework.com/llms.txt

## Key facts

- Kind: Checklist. Steps or checks to work through and tick off.
- Practice area: [Personal Injury & Compensation](https://ailawframework.com/precedents/personal-injury-and-compensation.md)
- Jurisdictions: Victoria, Queensland, New South Wales
- AI level: Yellow. You and the tool draft together, with you directing. You check every statement you rely on.
- Law stated as at: 2026-10-23
- Status: Maintained. Checked on 2026-10-23 against the 3 authorities it cites, for Victoria, Queensland and New South Wales.

## When to use it

Use when there is a reason to ask whether the client can give instructions on a particular decision. Do not use it as a medical certificate, a statutory declaration, or the application for a litigation guardian, tutor or sanction.

## Used for these tasks

- [Screen whether the injured person can give instructions](https://ailawframework.com/practice/personal-injury-and-compensation/screen-whether-the-injured-person-can-give-instructions.md)
- [Identify who can conduct the claim for a person under a legal disability](https://ailawframework.com/practice/personal-injury-and-compensation/identify-who-can-conduct-the-claim-for-a-person-under-a-legal-disability.md)
- [Check the authority of a person enquiring for someone else](https://ailawframework.com/practice/personal-injury-and-compensation/check-the-authority-of-a-person-enquiring-for-someone-else.md)

## How AI may be used

The tool may record what the lawyer saw and what support was offered, and it must not state that the client lacks capacity or choose a substitute decision-maker.

**AI may:**

- List the decision that is being asked about, and the observations the lawyer makes
- Record support that was tried, such as a quiet room, a support person, or another day
- Record the name of any attorney, guardian or administrator from a document the lawyer has seen

**AI must not:**

- Must not write that the client lacks capacity. That conclusion is the lawyer's, after the steps on this page
- Must not treat age, disability, appearance or an unwise decision as enough to refuse instructions
- Must not draft an affidavit, a medical report or a tribunal application
- Must not apply the Queensland or New South Wales formulation as the Victorian test

**The lawyer checks:**

- The decision on this page is one decision. A different decision is checked again
- Support was tried before any thought of a substitute. The New South Wales guide treats substitute decision-making as a last resort
- In Queensland, the presumption and the decision-specific test on the government page are the starting point. The 2020 guidelines were not opened
- In Victoria, the lawyer reads the current guardianship legislation and the LIV guidelines. Neither was opened for this checklist
- Health information on this page stays in the firm's system. Conduct rule 9 and APP 11 apply. A loss likely to cause serious harm is assessed under the Notifiable Data Breaches scheme

## Authorities

- [Law Society of New South Wales, When a client's mental capacity is in doubt (2016 guide): presume capacity, assess the decision not the wisdom of it, support the person first, and seek a clinical opinion if doubt remains](https://www.lawsociety.com.au/sites/default/files/2018-03/Clients%20mental%20capacity.pdf)
- [Queensland Government, Understanding capacity to make decisions (page updated 4 August 2026): every adult is presumed to have capacity; capacity is specific to the decision and the time; QCAT or the Supreme Court can declare capacity](https://www.qld.gov.au/justice/powers-attorney-guardianship/understanding-capacity-make-decisions)
- [Queensland Capacity Assessment Guidelines 2020, identified on that page as made under Guardianship and Administration Act 2000 (Qld) s 250. The guidelines PDF was not opened](https://www.qld.gov.au/justice/powers-attorney-guardianship/understanding-capacity-make-decisions)

## Full text and drafting notes

The full text and the drafting notes are not part of this public page. Signed-in firm accounts can read them at https://ailawframework.com/precedents/personal-injury-and-compensation/capacity-and-instructions-checklist and through the signed-in MCP connector https://ailawframework.com/mcp/firm.

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*