Substitute decision-making instruments include general and enduring powers of attorney, guardianship and administration processes and health care plans and directives.
If a client comes to you for advice regarding assets for care arrangements, this may be a good time to also discuss substitute decision-making.
Lawyers need a detailed understanding of current mechanisms for substitute decision-making and their problems and failings. You need to know where to go and what to do if abuse of powers is suspected or reported.
Regarding the need for substitute decision-making tools, see Capacity. A diagnosis of dementia does not necessarily equate with incapacity to make decisions, and a medical assessment does not determine a person’s ability to instruct a solicitor (see O’Connor & Purves 2009). The older person may need empowering as much as protecting and there may be less intrusive ways to support the older person than to activate an enduring power of attorney or appoint a guardian or administrator.
Removing another’s autonomy to act independently should be the last resort and consequently preference needs to be given to supported decision-making rather than substitute decision-making. The ‘supported decision-making’ approach empowers a person to make decisions for him/herself to the maximum extent possible (PVLRC 2009; see also Carter 2009). The Guardianship and Administration Act 1986 s. 4(2)(a) supports this approach:
‘It is the intention of Parliament that the provisions of this Act be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that –
(a) the means which is the least restrictive of a person’s freedom of decision and action as is possible in the circumstances is adopted …’
Law under review
In 2009–10 the Victorian Parliament’s Law Reform Committee conducted an inquiry into powers of attorney, and in 2009–11 the Victorian Law Reform Commission reviewed guardianship and administration law. These reviews will lead to law reform. Attorneys are likely to have more thorough reporting obligations; and people with reduced capacity may be able to move from substituted to supported decision-making, where they make decisions jointly with another person or with their support, rather than have decisions made for them by another.
Recommended resources on substitute decision-making
The Office of the Public Advocate has information and fact sheets on administration, guardianship, powers of attorney and medical treatment (including in other languages).
The Take Control kit from OPA/VLA can assist in the drafting of documents to ensure they contain safeguards and limit the attorney’s powers to what are needed.
OPA’s Guardianship and Administration Flowchart is a useful guide to the process of decision-making, capacity assessment, types of substitute decision-making needed.
See also the Victorian Civil and Administrative Tribunal website for online and video guides, online application forms and useful information about the Victorian Civil And Administrative Tribunal’s procedures.
See also Victoria Legal Aid
See also Lawyers Practice Manual Victoria – Ch 8.2 (Vol 2) for further information on powers of attorney and guardianship and administration.