INTRODUCTION

1. LEGAL AND ETHICAL PROTECTION OF AGING PERSONSCordelia ThomasSenior Legal AdviserNew Zealand Bioethics CouncilCordelia.Thomas@mfe.govt.nz

2. INTRODUCTION • Number of people aged 65 years and over has doubled over the last 50 years - expected to double again in next 50 years. • By 2051 22 % of older people projected to be aged over 85 • Changing social trends have led to drastic changes in the lives of older people • The aging of the “baby boom” generation -greater demand for long-term care services. • Movement to encourage home care in preference to hospitalisation and residential care.

3. Medical technology extending length of life - little indication of ability to lift burdens of life in old age. • growing level of very aged persons with high prevalence of chronic impairment and dementia • Future -substantial increase in number of elderly people needing social and legal support to • take care of themselves, • remain independent and • avoid abuse, neglect and economic hardship.

4. Need for substitute decision making will increase • Choices between institutional and home care - proving ground for public policy, social consensus and personal ethical issues. • This paper will consider the limitations of enduring powers of attorney • Provisions of the Protection of Personal and Property Rights Act 1988 (PPRA) • Law Commission Report • Protection of Personal and Property Rights Bill

5. HOME CARE VERSUS INSTITUTIONALISED CARE • Institutional care • services readily available when needed • reduces the risk of accidents through protective supervision • high cost • loss of privacy and individuality. • Loss of physical and mental capability

6. Home care • greater self reliance, • lesser costs • positive physical and emotional effects of remaining in own home. • But.. greater risk of accidents and having needs unmet.

7. COMPETENCE • Every adult person presumed “competent”. • No special test • Elderly persons generally presumed capable to make decisions and have the same rights and legal status as any other competent person in society • Loss of competence may be gradual and partial • Proxy decision maker to make decisions on behalf of consumer - Protection of Personal and Property Rights Act 1988 (PPPR Act).

8. PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988 • Used to protect adults unable to make or communicate their decisions. • Court may appoint a welfare guardian or • Person may appoint an attorney- appointment endures beyond the onset of mental incapacity • At the time of signing- donor must have legal “capacity” or “competence”. • PPPR Bill new section 94A - witness must certify no reason to suspect donor mentally incapable when s/he signed

9. CONCERNS ABOUT THE PPPR ACT • Age Concern identified problems as: • Financial impropriety • Failure to provide appropriate care Law Commission’s concerns: • Donors’ level of capacity when enduring powers of attorney signed and come into force • Lack of independent legal advice • Lack of requirement for attorneys to file accounts • Lack of independent monitoring • Powers of the Family Court dependent on someone taking action on behalf of incompetent donor • Donors reluctant to take action against family members

10. PPPR BILL Creation • witness of the donor's signature must be independent of the attorney and must either be a lawyer, or an officer or employee of a trustee corporation • before donor signs, witness must explain effects and implications of enduring power attorney • No medical examination required • No registration requirement

11. When Power Comes Into Effect • Mental illness and incompetence -different concepts • Attorney may not act unless donor mentally incapable • PPPR Bill provides donor is mentally incapable with regard to • property if not wholly competent to manage own property. • personal care and welfare if lacks capacity: • to make a decision; or • to understand the nature of decisions; or • to foresee the consequences of making or not making decisions or • wholly lacks the capacity to communicate decisions

12. If decision about personal care and welfare • significant matter donor must be certified as mentally incapable by health practitioner. • not significant matter- attorney may act if satisfied donor is mentally incapable • PPPR Bill new s93B every person presumed able to understand and communicate decisions until contrary shown • attorney must promote and protect donor's best interests while seeking at all times to encourage donor to develop competence

13. Attorney must: • encourage the donor to act independently • facilitate donor's integration into community • consider financial implications when deciding any matter relating to the donor's personal care and welfare.

14. FAMILY DYNAMICS AND DECISION MAKING • Some impaired people able to make decisions for themselves with support of family members. • Balance between self determination and paternalistic decision making complex if the older person has fluctuating capacity • Fine line between protection and control or exploitation. • In practice medical professionals seek consent and advice from family members • Older person may feel unable to resist if professionals join with family to convincing them of merits of institutionalisation • Erosion of autonomy may be incremental not sudden

15. SHARED DECISION MAKING • However…sharing decision making may strengthen relationships • Some older persons have reduced wish for control over and information about decisions • Sharing may delay the point at which an attorney or welfare guardian assumes full responsibility • May assist communication between older person and clinicians

16. RISK • Family may exercise a high degree of control with intention to protect older person from perceived risks • Some older people willingly accept high level of risk • Re RMS [PPPR] (1993) 10 FRNZ 387

17. PROTECTION OF THE DONOR’S AUTONOMY • Difficult to protect autonomy of all elderly persons • Elderly may value other concepts, such as collective rights, family caring and interactions with society more highly than individual autonomy. • Rather than amending legislation, what may be needed are protective social services. • Government policies to avoid institutional care, together with a familial wish to preserve property of the older person may result in increased neglect and abuse

18. CONCLUSIONS • Major difficulties in regulating the gradual and varying onset of reduced capacity • Better promoted by way of public education programmes than by legislation • Legislation will not prevent avaricious and/or uncaring conduct towards vulnerable elderly