Do we need more formal processes for monitoring decisions made on behalf of people who lack capacity, asks Prof John Dawson, of the Otago law faculty.
Recently, the Government asked the Law Commission to review the law governing adults who lack capacity to make decisions about their personal care or property.
Some colleagues and I have just published a book on this subject. The law here is about people’s ability to make decisions for themselves – about their medical treatment, for example, or entry into a rest-home, selling their house, making a will, getting married, entering a contract, and many other decisions that need to be made.
A person might lack capacity due to the effects of a learning (or intellectual) disability, head injury, stroke, dementia, or some other serious psychological condition. As a result, they may be unable to understand, retain, or process relevant information, or grasp the implications of the decision, or communicate their choice.
Many legal questions arise. How should a person’s capacity be assessed, and against what standards? What are the consequences, if they lack capacity? Does it bar them from making the relevant decision? Or can someone else be appointed to make a proxy decision on their behalf? On what basis should the proxy decide, and how can they be kept accountable for the decisions they make, including decisions about spending the other person’s money? These are the kinds of question – relevant to many families and whanau – that the Law Commission must address.
The main legislation is the Protection of Personal and Property Rights Act, enacted in 1988. It was promoted at that time by the IHC. This was the era of closure of large psychiatric facilities. People were being moved into community housing. How would decisions about their position subsequently be made?
Thirty years on, the main focus of the legislation is the very elderly. The law establishes formal mechanisms for appointing proxies with the power to make decisions for other adults who lack capacity (for any reason). The main mechanism, that you can use in advance, is to execute an enduring power of attorney. This gives someone else (usually a close family member) the power to make decisions for you, if you later come to lack capacity.
Other mechanisms involve applications to the Family Court. This can involve substantial delay and is more expensive. That court can appoint a welfare guardian with the power to make decisions about the personal care of an adult who lacks capacity, or appoint a property manager, to make decisions about their finances. Other laws permit health professionals to determine the medical treatment of people who cannot consent.
Why does the law need review? Mainly, because the social context in which it operates has changed since 1988. The elderly population has greatly increased. Residential care is often run by private organisations, for profit, not by the state. Family structures are more complicated and family members more dispersed. The balance of wealth between the generations has shifted. Maori are looking for more authority to make decisions about their own people, here, as in the area of child protection. Concerns about human rights have advanced.
A big question is whether the law can continue to rely so heavily on the basic decency of New Zealand families and whanau, for example, to monitor the performance of one family member who holds an enduring power of attorney over a parent’s property to the exclusion of other family members. Are more formal mechanisms, to prevent abuse, required? What mechanisms? Could online processes assist, for filing accounts, for instance? Should some public agency have oversight of the process? How could that work effectively?
Ultimately, there is the question of the cost and inconvenience that families and the state are prepared to bear, to provide such mechanisms, in light of the other demands in caring for the elderly. What are the priorities for expenditure in this area? Are formal processes for preventing abuse of elderly people’s property on top of the list? Should the Family Court be made more accessible to families in this zone?
The Law Commission will want plenty of public input on these matters. The task is likely to take it several years.
– John Dawson is a professor of law at the University of Otago. He is a co-editor, with Iris Reuvecamp, a Wellington lawyer, of Mental Capacity Law in New Zealand.
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