Substitute decision-making

Substitute decision-making

Powers of Attorney and Guardianship and Administration

Substitute decision-making instruments include general and enduring powers of attorney, guardianship and administration processes and medical treatment decisions and advance care directives.

If a client comes to you for advice regarding an assets for care arrangement, this may be a good time to also discuss substitute decision-making.

Lawyers require a detailed understanding of current mechanisms for substitute decision-making and their problems and failings. You also 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 section on 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 involves empowering a person to make decisions for himself or herself to the maximum extent possible (PVLRC 2009).

The Guardianship and Administration Act 1986 s. 4(2) 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. b)  the best interests of a person with a disability are promoted; and c)  the wishes of a person with a disability are wherever possible given effect to.

Recommended resources on substitute decision-making

The Office of the Public Advocate (OPA) 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. The kit has information and forms to make, change or revoke powers of attorney and guardianship. A new edition of this booklet will be available in March 2018.  Take Control kit.

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 Victorian Civil and Administrative Tribunal website for online and video guides, online application forms and useful information about VCAT procedures.

See also Victoria Legal Aid

Facts on Powers of Attorney or Guardianship

Facts on Administration Orders