A Potential New Approach for Adults with Impaired Capacity in New Zealand

Background

According to the Commission, the goal of this reform is to strengthen the protection and promotion of people’s equality, dignity and autonomy while ensuring they receive appropriate support when making important decisions.

This new law would apply to adults with an affected ability to make decisions in any way. This includes any adult with an impaired functional ability to make decisions, whether the impairment is temporary or permanent, mild or severe, and regardless of the cause (such as traumatic brain injury, dementia, learning disability, or mental distress).

Why the Commission is Seeking Reform

The current PPPR Act was introduced before the United Nations Convention on the Rights of Persons with Disabilities and is seen as outdated in several areas. Under the current law, if you or a loved one was found to lack capacity to make certain decisions, the Family Court can appoint someone else (such as a welfare guardian or property manager) to make decisions on their behalf. The Act also allows for enduring powers of attorney (EPOAs), where a person can appoint someone they trust to make decisions for them if they lose capacity in the future.

The Commission notes that the current framework heavily prioritises a person’s “best interest” which can result in a paternalistic approach where individual wishes and preferences are overlooked. It should instead emphasise supported decision making which allows individuals to remain as involved as possible in decisions affecting their lives.

Reform Recommendations by the Commission

The Commission has proposed several amendments to the law however we outline a few key recommendations below:

Stronger Supported Decision Making

• One of the Commission’s key recommendations is the introduction of a formal supporter role. A supporter would assist a person in understanding information, considering options and communicating decisions. However, a formal supporter would not have the power to make decisions on the person’s behalf. Their role would be limited to helping the person make their own choices and as a result, preserving the individual’s autonomy, and minimising the risk of formal supporters misusing their powers.
• The Commission has also recommended the creation of a voluntary register for enduring powers of attorney. This register would allow people to record the existence and location of these documents, making them easier to locate when required.

Clearer Test for Decision Making Capacity

• Another major recommendation is the introduction of a single legal test for decision making capacity. Under this proposed test, a person would be considered unable to make a particular decision if they cannot:
  • Understand the information relevant to the decision
  • Retain that information long enough to make that decision
  • Use or weigh the information when deciding
  • Communicate their decision in any way
• The Commission is wanting capacity assessments to be realistic and fair by recognising that many people can make their own decisions if given the right kind of support. This change would help ensure people are not unnecessarily found to lack capacity simply because they need or use support in their decision making.

Different Ways to Assess Capacity

• Different situations require different levels of formality when assessing a person’s capacity, according to the Commission. To address this, the proposed legislation would allow for three types of assessments:

• Formal assessments conducted by professionals
• Determinations by the Family Court
• Informal assessments by representatives when deciding whether a person can make a specific decision themselves

• All three would apply the same legal test and retain the presumption that individuals have capacity unless proven otherwise.

Overall, the Commission’s proposed reforms aim to shift the law toward supported decision making, giving people with impaired capacity more control and respect for their preferences, rather than having decisions imposed on them.