This article was produced by the Commission and appeared in the June 2011 issue of the Law Institute Journal.
A review of the Guardianship and Administration Act backs the introduction of supported decision-making arrangements.
The Victorian Law Reform Commission (VLRC)’s consultation paper on the review of the Guardianship and Administration Act 1986 (Vic) was released earlier this year.
Our current guardianship laws draw a sharp line between capacity and incapacity. Because the law has not recognised that some people experience partial or fluctuating capacity, it has provided only one mechanism – substitute decision-making – to assist people with impaired decision-making capacity.
In the consultation paper, the VLRC looks at changing perspectives on how the rights, wishes and preferences of people with decision-making impairments should be considered, including the emphasis within the United Nations Convention on the Rights of Persons with Disabilities on supporting people in the exercise of legal capacity.
The VLRC has suggested that as well as providing for substitute decision-making arrangements, the law needs to better recognise situations where a person has difficulty making decisions on their own, but is able to do so when provided with support.
The VLRC has proposed the introduction of a number of legal responses which better reflect the range of decision-making capabilities that people possess. These proposals, broadly based on developments in some Canadian provinces, are referred to in the consultation paper as supported decision-making appointments and co-decision-making appointments.
Supported decision-making appointments
The proposed supported decision-making arrangements could be made either through a written appointment (similar to a power of attorney) or through an order by the Victorian Civil and Administrative Tribunal (VCAT).
Appointed “supporters” would not have the legal authority to make decisions on behalf of the person, but would be authorised to obtain necessary information on behalf of the person, support the person to make a decision based on the information available, and communicate the person’s decisions to others where necessary.
The proposed co-decision-making appointments could also be made either through written agreement, or through VCAT order.
For co-decision-making arrangements, both the person and the co-decision-maker would need to agree for the decision to have legal effect. Like supporters, co-decision-makers would be responsible for working with the person to help them make a decision.
Though there has been some experience in Canada, the practical impact of these arrangements is still largely unknown. The VLRC sought responses to a number of issues:
- Will the formalisation of these relationships help supportive relationships, or will they prove too confusing for people in practice?
- Should these arrangements operate for financial decisions, or will this prove unworkable?
- What should be the duties of supporters and co-decision-makers, and what legal responsibility should they bear for decisions made under these arrangements?
- What can be done for people who need assistance with decision-making, but who do not have any family or friends who are able to take on this role?
Safeguards and accountability
As with existing substitute decision-making appointments, there is a possibility that some supporters or co-decision-makers might use these new legal arrangements inappropriately.
The VLRC has suggested a number of ways to minimise the risk of abuse. They include:
- a role for the Public Advocate in providing ongoing education and support for people appointed to these roles;
- regular reviews of supported and co- decision-making arrangements by the Public Advocate; and
- a power for VCAT to set aside or alter these arrangements when they have been misused.
The VLRC sought submissions in response to the consultation paper, particularly in response to the following questions:
- Are these proposals for new supported and co-decision-making arrangements a good idea?
- In what circumstances should they be used?
- What responsibilities should supporters and co-decision-makers have?
- What safeguards are necessary to ensure the arrangements are used appropriately?
The final report, including final recommendations, is due to the state Attorney-General on 23 December 2011.