This article was produced by the Commission and appeared in the March 2011 issue of the Law Institute Journal.
Exploring ways of improving substitute decision-making is the subject of a new consultation paper.
The Victorian Law Reform Commission (VLRC) is asking for responses from the legal profession to its review of Victorian guardianship laws.
The VLRC has released a consultation paper which explores how the laws can be clarified, improved and re-designed to better protect the rights of people with impaired decision-making capacity.
The current regime in Victoria has been in place for over twenty years. Victoria was the first state to introduce a comprehensive Guardianship and Administration Act in 1986. The Act has been amended over time, with the most recent major changes in 1999.
The VLRC has been asked to review the Act and how it interacts with other laws that deal with substituted decision-making arrangements, including powers of attorney.
The Guardianship and Administration Act was introduced at a time when there was an increasing need to appoint substitute decision makers to assist people with intellectual disabilities who were moving from institutions into the community.
A much broader group of people now use the Act. People with age-related dementia and people with acquired brain injuries, have become the largest user groups of the legislation.
The VLRC believes that new guardianship laws should seek to maximise participation by people with impaired decision-making capacity in decisions that affect them and in the life of the community. The many laws that deal with substitute decision making also need to be better integrated so that they are easier to use and reflect the fluid, changing nature of people’s decision-making abilities.
The VLRC consultation paper contains a number of reform options and questions for community response. Some of the reform proposals raised in the paper include the following.
Supported decision making
Guardianship laws currently draw a sharp line between capacity and incapacity. Because the law does not recognise partial or fluctuating capacity, it has provided only one mechanism – substitute decision making – to assist people with impaired decision making capacity.
The VLRC proposes that the law evolve to enable people with some impaired decision making capacity to participate in decisions that affect them.
The VLRC describes a possible new decision making continuum that favours supported decision making. It comprises:
- new supported decision making agreements, where one person authorises another to access information on their behalf to assist them to make decisions;
- new co-decision making agreements, where one person authorises another to make decisions with them, and where the decision requires the agreement of both people to be valid;
- existing enduring powers of attorney and enduring guardianship, where a person appoints their own substitute decision-maker to make decisions on their behalf if and when, and to the extent that, they lose capacity in the future;
- supported decision making orders made by VCAT;
- co decision making orders made by VCAT; and
- orders by VCAT appointing a guardian or administrator as a substitute decision maker.
The VLRC proposes that personal appointments would continue to be the preferred way to appoint substitute decision makers and supporters. A simpler, more accessible, personal appointments scheme with better safeguards and better regulation is proposed.
The VLRC suggests that an electronic registration scheme for personal appointments be established. Interested third parties, such as doctors and banks, would be given limited access to verify the terms of a personal appointment. The Commission proposes that under such a scheme, personal appointments would only be legally binding if registered.
Other issues highlighted for possible reform include the activation of enduring powers, the enforceability of advance planning documents, succession planning for parents of adult children with impaired capacity, and means of streamlining personal appointments.
Improved safeguards and accountability
The VLRC proposes a range of reforms to provide better accountability and scrutiny of substituted decision-making arrangements. Some are:
- giving personally appointed substituted decision makers—enduring guardians and attorneys—the same responsibilities and accountability requirements as guardians and administrators appointed by VCAT;
- requiring guardians, administrators and attorney to give an oath (or affirmation) of office upon undertaking there responsibilities;
- giving the Public Advocate a stronger role in supervising and promoting a range of matters related to substitute and supported decision-making, including a clearer advocacy role, stronger investigatory powers, and the ability to take civil penalty proceedings where obligations under guardianship laws are not met; and
- providing for merits review of individual decisions by some guardians and administrators.
The VLRC seeks submissions in response to the consultation paper and is keen to hear from legal practitioners who work in this field.
Submissions can be made in writing and submitted via post, email or on the VLRC’s website. They are due by 20 May 2011.
The consultation paper is available at www.lawreform.vic.gov.au.