VLAF - 19 July 2012

1. VLAF - 19 July 2012 Overview of VLRC guardianship review: New principles and alternatives to guardianship Eleanore Fritze Senior lawyer, Mental Health & Disability Advocacy, Civil Justice

2. Overview • New purpose and principles • Disability, capacity and incapacity • Continuum of decision-making arrangements • Supported decision-making • Co-decision-making • Documenting wishes about the future

3. A new purpose • ‘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: • Support and assist people to make, participate in, or implement decisions that affect their lives • Appoint and guide substitute decision-makers • Ensure the ongoing appropriateness of support and substitute decision-making arrangements • Safeguard against the abuse, neglect and exploitation of people with impaired decision-making ability’

4. New general principles • Express presumption of capacity • People with impaired decision-making ability: • Have human dignity which must be respected • Have the same human rights and fundamental freedoms • Should be provided with necessary support • Have wishes and preferences • Are entitled to take reasonable risks and make choices others may disagree with…

5. New general principles – cont. • Should be able to participate in life on an equal basis • Should be able to communicate in a way that allows them to understand and be understood • Have the right to live in safety and security, with protection from abuse, neglect and exploitation • Should have supportive relationships respected • Should have their cultural and linguistic circumstances respected • Any limitations on decision-making rights must be ‘justified, reasonable and proportionate’

6. Disability and incapacity • 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’

7. Capacity 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

8. Capacity assessment principles • 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

9. Continuum of decision-making arrangements • 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

10. Supported 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

11. Supported decision-making arrangements cont. • 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

12. Co-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 • 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

13. Co-decision-making arrangements cont. • 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

14. Documenting wishes about the future • 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