How proposed reforms could help lawyers to give elderly clients independence, while ensuring their safety and care

The NSW Law Reform Commission has been asked to review and report on the desirability of changes to the Guardianship Act 1987 (NSW). This review has proposed some significant changes to the current arrangements that will hopefully replace substituted decision making with supported decision-making place much greater emphasis on the will of the assigning.

What is the current approach?

The current legal approach encourages lawyers to assist people to finalise all the necessary legal instruments to appoint trusted persons to make decisions on their behalf if the person’s decision-making capacity is diminished or disabled entirely due to an illness that catalyses cognitive decline or affects memory function. The current approach does not take into consideration several extremely important factors.

What is the problem?

Firstly, it is evident that removing the right of an individual to make decisions over their own life is exceedingly disempowering and can lead to further disengagement with the outside world. This engagement is an essential feature of a person’s wellbeing and its loss has been shown to detrimentally affect the rate of cognitive decline. Secondly, it does account for the fluctuating nature of decision-making capacity that is often associated with illnesses such as dementia. A client may be perfectly capable of making a decision one day and unable to the next.

What is being proposed?

This is where the proposed reform will improve the current system. The review recommends introducing a formal supported decision-making scheme as a new component to NSW assisted decision making laws. The Law Reform Commission proposes the introduction of ‘representation orders’ which will replace guardianship and financial management orders as an option for last resort. These will be supported by review structures such as the ‘assisted decision-making division’ of NCAT.

What is supported decision making?

Supported decision-making is where an appointed ‘supporter’ assists a person to make decisions about various areas of their life. The emphasis is on co-decision making instead of substitute decision making meaning both parties need to come to an agreement about the decision. Whilst the process of arriving at a decision may be arduous and less time-efficient than having a substitute make decisions on behalf of the person, the benefits vastly outweigh the inconvenience. Ultimately, the right to self-determination is a human right and the power to make the decisions that one can make, is a basic and integral freedom.

What happens now?

It is now up to the NSW Government to decide if and when it will make changes to the current law. Given the Guardianship Act was written 30 years ago, it’s clear that there is need for change. It seems that community attitudes have shifted, making the act less fit for purpose than it was when it was drafted. You can read the summary of the review here and if any of these proposed reforms resonate, you can encourage your local State MP to take action to reform the guardianship system.  * Note that any future reforms will not affect existing substituted decision-making documents.

If you have an existing Power of Attorney (POA) arrangement in place or are considering whether to enter into a POA then please contact the friendly team at & Legal, and the appropriate lawyer will be assigned to assist with any inquiries that you may have.