12When person has decision-making capacity

### 12 When person has decision-making capacity > > (1)  For the purposes of this Act, a person has decision-making capacity in relation to a decision for the purposes of this Act if, when the person makes the decision, the person has the capacity to – > > > > > > (a) understand the information or advice that is reasonably required in order to be able to make the decision; and > > > > > > > (b) remember such information or advice to the extent necessary to make the decision; and > > > > > > > (c) use or evaluate the information or advice for the purposes of making the decision; and > > > > > > > (d) communicate the decision, and the person’s opinions in relation to the decision, whether by speech, in writing, by gesture or by other means. > > > (2)  For the purposes of [subsection (1)](#GS12@Gs1@EN)  – > > > > > > (a) a person is to be taken to have decision-making capacity in relation to a decision unless there is evidence to the contrary; and > > > > > > > (b) a person is taken to understand information and advice in relation to the making of a decision if it reasonably appears that he or she is able to understand an explanation of the consequences of making the decision. > > > (3)  In determining whether or not a person has decision-making capacity in relation to a decision, regard must be had to each of the following: > > > > > > (a) a person may have the capacity to make some decisions and not others; > > > > > > > (b) a person’s lack of capacity to make a decision may be temporary and not permanent; > > > > > > > (c) an assumption that a person does not have the capacity to make a decision should not be made – > > > > > > > > > > (i) on the basis of the person’s appearance; or > > > > > > > > > > > (ii) because the person makes a decision that another person may consider to be unwise. > > > (4)  If a person’s CMP, PMP or AHP is unable to determine whether the person has decision-making capacity in relation to a decision, the CMP, PMP, or AHP, respectively, must refer the person, under [section 25](#GS25@EN) , [section 32](#GS32@EN) , [section 46](#GS46@EN) , [section 54](#GS54@EN) or [section 79](#GS79@EN) , as the case may be, to a medical practitioner, psychiatrist, or psychologist, who has the skills and training that are appropriate to make such a determination. > > > (5)  If a CMP, PMP or AHP refers a person in accordance with [subsection (4)](#GS12@Gs4@EN) to another person, the CMP, PMP or AHP may adopt, for the purposes of the decision of the CMP, PMP or AHP in relation to which the person was referred to the other person, the decision of the other person as to whether the person has decision-making capacity at that time.