VLAF - 19 July 2012

Eleanore FritzeSenior lawyer, Mental Health & Disability Advocacy, Civil Justice

Overview of VLRC guardianship review: New principles and alternatives to guardianship

• New purpose and principles• Disability, capacity and incapacity• Continuum of decision-making arrangements

• Supported decision-making• Co-decision-making

• Documenting wishes about the future

Overview

‘The purpose of this Act is to protect and promote the dignity and human rights of people with impaired decision-making ability.

To this end, the Act establishes mechanisms to:

(a) Support and assist people to make, participate in, or implement decisions that affect their lives

(b) Appoint and guide substitute decision-makers

(c) Ensure the ongoing appropriateness of support and substitute decision-making arrangements

(d) Safeguard against the abuse, neglect and exploitation of people with impaired decision-making ability’

A new purpose

Express presumption of capacity

People with impaired decision-making ability:

(a) Have human dignity which must be respected

(b) Have the same human rights and fundamental freedoms

(c) Should be provided with necessary support

(d) Have wishes and preferences

(e) Are entitled to take reasonable risks and make choices others may disagree with…

New general principles

f) Should be able to participate in life on an equal basis

g) Should be able to communicate in a way that allows them to understand and be understood

h) Have the right to live in safety and security, with protection from abuse, neglect and exploitation

i) Should have supportive relationships respected

j) Should have their cultural and linguistic circumstances respected

• Any limitations on decision-making rights must be ‘justified, reasonable and proportionate’

New general principles – cont.

• A person lacks capacity if they are unable to make a decision because of a disability• Causal connection retained

• Non-exhaustive definition of disability, including ‘intellectual impairment, autism spectrum disorder, mental disorder, brain injury, physical disability or dementia’

Disability and incapacity

• Presumption of capacity

• Capacity and incapacity both defined - able/unable to:• understand the information relevant to the

decision and the effect of the decision • retain that information • use or weigh that information, and/or • communicate the decision in some way

Capacity and incapacity

• Capacity is decision-specific and time-specific• Capacity is support-dependent• Capacity should be properly assessed and should not

be based on assumptions• Capacity should be assessed in an appropriate

environment

Capacity assessment principles

• Autonomous decision-making• Informal decision-making support• Supported decision-making

• Person receives support to help them make a decision

• Co-decision-making• Person makes a decision jointly with another

person• Substitute decision-making

• Somebody else makes a decision on the person’s behalf

Continuum of decision-making arrangements

• Possible powers:• Access or assist the person to access information• Discuss the information so that the person can

understand and will be assisted to make a decision

• Communicate or assist the person to communicate decisions to other people

• Advocate for implementation of the person’s decision

• NOT able to make decisions on behalf of the supported person or exercise authority without the person’s knowledge or consent

• Responsibilities and safeguards

Supported decision-making arrangements

• How is a supporter appointed?• Person with capacity may make a ‘supported

decision-making appointment’ (must be written and registered)

• VCAT may make a ‘supported decision-making order’ if the person ‘freely and voluntarily consents’, there is a need and it would promote the person’s personal and social wellbeing

• Scope of authority, and any conditions or limitations on power, should be specified

• Identity of supporter is important

Supported decision-making arrangements cont.

• Possible powers:• Access or assist the person to access information• Discuss the information so that the person can

understand and will be assisted to make a decision• Make decisions jointly with the person• All things necessary to give effect to joint decisions

• NOT able to make decisions on behalf of the person or exercise their authority without the person’s knowledge or consent

• Responsibilities and safeguards• Disagreements

Co-decision-making arrangements

• VCAT appointment only, where:• Decision-making capacity impaired and unlikely

the person has capacity to make the decisions alone

• They would have capacity to make joint decisions• Need for the appointment• ‘Free and voluntary consent’• Needs could not be met through informal

arrangements or a supporter• Promotion of personal and social wellbeing

• Scope of authority, and any conditions or limitations on power, should be specified

• Identity of co-decision-maker

Co-decision-making arrangements cont.

• People should be encouraged and permitted to plan for the future to promote autonomy

How?• Appoint an ‘enduring personal guardian’ or ‘enduring

financial administrator’• Can specify limits on powers• Can provide instructions for decision-making

• Make a stand-alone ‘instructional directive’

• Binding instructions about health matters• Non-binding advisory instructions in other

personal, lifestyle and financial matters

Documenting wishes about the future