1. VLAF - 19 July 2012 Eleanore Fritze Senior lawyer, Mental Health & Disability Advocacy, Civil Justice Overview of VLRC guardianship review: New principles and alternatives to guardianship

2. New purpose and principles Disability, capacity and incapacity Continuum of decision-making arrangements Supported decision-making Co-decision-making Documenting wishes about the future Overview

3. ‘The purpose of this Act is to protect and promote the dignity and human rights of people with impaired decision-making ability. To this end, the Act establishes mechanisms to: (a)Support and assist people to make, participate in, or implement decisions that affect their lives (b)Appoint and guide substitute decision-makers (c)Ensure the ongoing appropriateness of support and substitute decision-making arrangements (d)Safeguard against the abuse, neglect and exploitation of people with impaired decision-making ability’ A new purpose

4. Express presumption of capacity People with impaired decision-making ability: (a)Have human dignity which must be respected (b)Have the same human rights and fundamental freedoms (c)Should be provided with necessary support (d)Have wishes and preferences (e)Are entitled to take reasonable risks and make choices others may disagree with… New general principles

5. f)Should be able to participate in life on an equal basis g)Should be able to communicate in a way that allows them to understand and be understood h)Have the right to live in safety and security, with protection from abuse, neglect and exploitation i)Should have supportive relationships respected j)Should have their cultural and linguistic circumstances respected Any limitations on decision-making rights must be ‘justified, reasonable and proportionate’ New general principles – cont.

6. A person lacks capacity if they are unable to make a decision because of a disability Causal connection retained Non-exhaustive definition of disability, including ‘intellectual impairment, autism spectrum disorder, mental disorder, brain injury, physical disability or dementia’ Disability and incapacity

7. Presumption of capacity Capacity and incapacity both defined - able/unable to: understand the information relevant to the decision and the effect of the decision retain that information use or weigh that information, and/or communicate the decision in some way Capacity and incapacity

8. Capacity is decision-specific and time-specific Capacity is support-dependent Capacity should be properly assessed and should not be based on assumptions Capacity should be assessed in an appropriate environment Capacity assessment principles

9. Autonomous decision-making Informal decision-making support Supported decision-making Person receives support to help them make a decision Co-decision-making Person makes a decision jointly with another person Substitute decision-making Somebody else makes a decision on the person’s behalf Continuum of decision-making arrangements

10. Possible powers: Access or assist the person to access information Discuss the information so that the person can understand and will be assisted to make a decision Communicate or assist the person to communicate decisions to other people Advocate for implementation of the person’s decision NOT able to make decisions on behalf of the supported person or exercise authority without the person’s knowledge or consent Responsibilities and safeguards Supported decision-making arrangements

11. How is a supporter appointed? Person with capacity may make a ‘supported decision-making appointment’ (must be written and registered) VCAT may make a ‘supported decision-making order’ if the person ‘freely and voluntarily consents’, there is a need and it would promote the person’s personal and social wellbeing Scope of authority, and any conditions or limitations on power, should be specified Identity of supporter is important Supported decision-making arrangements cont.

12. Possible powers: Access or assist the person to access information Discuss the information so that the person can understand and will be assisted to make a decision Make decisions jointly with the person All things necessary to give effect to joint decisions NOT able to make decisions on behalf of the person or exercise their authority without the person’s knowledge or consent Responsibilities and safeguards Disagreements Co-decision-making arrangements

13. VCAT appointment only, where: Decision-making capacity impaired and unlikely the person has capacity to make the decisions alone They would have capacity to make joint decisions Need for the appointment ‘Free and voluntary consent’ Needs could not be met through informal arrangements or a supporter Promotion of personal and social wellbeing Scope of authority, and any conditions or limitations on power, should be specified Identity of co-decision-maker Co-decision-making arrangements cont.

14. People should be encouraged and permitted to plan for the future to promote autonomy How? Appoint an ‘enduring personal guardian’ or ‘enduring financial administrator’ Can specify limits on powers Can provide instructions for decision-making Make a stand-alone ‘instructional directive’ Binding instructions about health matters Non-binding advisory instructions in other personal, lifestyle and financial matters Documenting wishes about the future