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Person’s capacity to be construed functionally
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3. (1) Subject to subsections (2) to (6), for the purposes of this Act, a person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time.
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(2) A person lacks the capacity to make a decision if he or she is unable—
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(a) to understand the information relevant to the decision,
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(b) to retain that information long enough to make a voluntary choice,
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(c) to use or weigh that information as part of the process of making the decision, or
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(d) to communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.
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(3) A person is not to be regarded as unable to understand the information relevant to a decision if he or she is able to understand an explanation of it given to him or her in a way that is appropriate to his or her circumstances (whether using clear language, visual aids or any other means).
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(4) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him or her from being regarded as having the capacity to make the decision.
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(5) The fact that a person lacks capacity in respect of a decision on a particular matter at a particular time does not prevent him or her from being regarded as having capacity to make decisions on the same matter at another time.
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(6) The fact that a person lacks capacity in respect of a decision on a particular matter does not prevent him or her from being regarded as having capacity to make decisions on other matters.
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(7) For the purposes of this section, information relevant to a decision shall be construed as including information about the reasonably foreseeable consequences of—
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(a) each of the available choices at the time the decision is made, or
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(b) failing to make the decision.
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