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Decision making: When others can legally make decisions for you

Overview of New Zealand’s substitute decision making approach

People First New Zealand have produced a number of Easy Read guides to the law, including information about supported decision making, a tool for making decisions, a guide to making a will, an Easy Read will form, and information about enduring powers of attorney. Their guides are available at: www.peoplefirst.org.nz/news-and-resources/easy-read-resources

Laws in NZ about decision making lag behind the approach in the UN Disability Convention explained in the previous section.

The Disability Convention endorses a supported decision making approach, where disabled people have full rights to make decisions for themselves and are provided with the support, advice and information they need to do this. The Convention says that governments that sign up to it – like New Zealand – must:

  • recognise that disabled people “enjoy legal capacity on an equal basis with others in all aspects of life” (Article 12) and
  • take the appropriate measures to ensure that you’re given the support you need to exercise your legal capacity.

Even though New Zealand has signed up to the Convention, that doesn’t mean the rights in the Convention are directly part of New Zealand law. Instead of supported decision making, we have what’s called a “substitute decision making approach” where your powers to make decisions for yourself may be legally transferred to someone else.

Substitute decision making is outlined in the Protection of Personal and Property Rights Act 1988. This Act is built around an all-or-nothing distinction between being mentally capable and being mentally incapable. If you’re judged to not be mentally capable (which means not able to make decisions yourself, or not able to tell other people about your decisions), then your decision making powers are legally transferred to someone else for them to make decisions on your behalf.

However, there are some particular cases where Family Court Judges could recognise and promote a supported decision making approach. We’ll explain this more below.

Note: There is a call from the disabled community – particularly from the learning disability community – to reform New Zealand law around decision making to bring it in line with international law and enable disabled people to have more autonomy and control over their lives.

Substitute decision making: How your decision making powers could get transferred to someone else

If your ability to make decisions for yourself is in doubt, then there are two main ways that someone else could legally have the power to make decisions on your behalf:

  • Enduring power of attorney: If you’ve made a special legal document called an “enduring power of attorney” (EPA), then the person you have chosen to make decisions for you, your “attorney” can step in to make decisions. See How you can appoint someone to make decisions for you: Enduring powers of attorney”.
  • Losing your legal decision-making capacity: If you haven’t made an EPA, meaning that no-one has been given the legal power to make decisions for you, people close to you can get the courts involved. They can apply to the Family Court for the court to make decisions for you, or for the judge to appoint someone else to make decisions on your behalf. See below, “When judges and others can make decisions for you”.

There are several ways you might lose your legal ability to make decisions for yourself. You might, for example, develop a mental illness which affects your ability to make decisions while you are unwell. Or you might have a serious car accident and suffer a brain injury, with permanent or temporary effects.

It could also be that you have had a learning disability since birth, and that you’re now approaching your 18th birthday. Your parents’ powers, as your legal guardians, to make decisions on your behalf will come to an end when you turn 18. If your parents want to continue to have that legal power, they have to apply to the Family Court to be appointed as your “welfare guardians” under the Protection of Personal and Property Rights Act.

In all these different cases, the approach of New Zealand law is to first establish whether or not you’re  considered “mentally capable”. If, in your particular case, it’s established that you’re not mentally capable then your powers to make decisions for yourself will be transferred to some other person.

Supported decision making: Using New Zealand law to put in place a supported decision making approach, like a “circle of friends”

Protection of Personal and Property Rights Act 1988, s 10, Protection of Personal and Property Rights Act 1988, s 9

The Protection of Personal and Property Rights Act gives the courts a little room to promote supported decision making when a Family Court Judge decides you do not have mental capacity. They can do this with what’s called a “personal order”, which is about a person’s personal affairs and care arrangements, like where they’re living. Family Court Judges have a general power to make directions in these situations, and that power can be used to give the court’s backing to a supported decision making arrangement.

This could be, for example, a “circle of friends” – an informal arrangement where family, friends, neighbours, health professionals and so on provide you with support and information so you can make your own decisions and communicate your decisions to others, without having to involve the legal system.

Another important principle in the Act is that the judge should intervene in your life as little as possible, and should help and encourage you to make decisions for yourself as far as you’re capable of doing that

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Disability rights

Where to go for more support

COVID-19 information


The Disabled Persons Assembly (DPA) has up-to-date COVID-19 information for the disabled community on their website. They also post new information on their Facebook page and their Information Exchange newsletter. You can sign up by going to the website linked above. For more information about DPA, see below.

Community Law


Your local Community Law Centre can provide free initial legal advice and information.

Auckland Disability Law



ADL provides assistance and referrals to disabled people on their legal issues, and work with other Community Law Centres, legal professionals and community organisations to raise disability awareness and achieve the best outcome for disabled people.

Office for Disability Issues


The Office for Disability Issues is the focal point in government on disability issues.

Human Rights Commission


This page on the HRC website focuses on the Commission’s work around both individual and systemic disability discrimination. There are resources available in multiple accessible formats.

Health and Disability Commissioner


Phone: 0800 11 22 33
Email: hdc@hdc.org.nz

The Health and Disability Commissioner has a range of pamphlets and other information on health and disability issues.

Contact a Health and Disability Advocate

Phone: 0800 555 050

Make a complaint to the Commissioner

Phone: 0800 11 22 33
Email: hdc@hdc.org.nz

PO Box 1791, Auckland

You can make a complaint by phoning the Commissioner’s office toll-free, by email, by filling in the online complaint form or by writing to them.

Ministry of Health Services and Support


Publicly funded health and disability services available in New Zealand.

Disabled Persons Assembly


The DPA is a pan-disability organisation. DPA works to improve social indicators for disabled people and for disabled people be recognised as valued members of society. DPA and its members work with the wider disability community, other disabled persons’ organisations, government agencies, service providers, international disability organisations and the public.

People First


People First New Zealand is a self-advocacy organisation that is led and directed by people with learning (intellectual) disability. People First has a free Disability Information and Advice Service and they also produce legal resources in Easy Read form which are free to download from their website.

Deaf Aotearoa


Deaf Aotearoa is a national organisation representing the voice of Deaf people, and the national service provider for Deaf people in New Zealand.

Deaf Aotearoa also works closely with Deaf communities, government agencies and other organisations to increase awareness, promote New Zealand Sign Language and strengthen the rights of Deaf people.

Family Violence – It’s Not OK


Phone: 0800 456 450

“It’s not OK” is a community-driven behaviour change campaign to reduce family violence in New Zealand. Its goal is to change attitudes and behaviour that tolerate any kind of family violence. The website has resources for families who are experiencing abuse. It’s not OK is an initiative housed within the Ministry of Social Development.

Family violence and disabled people


Inclusive Education


This site provides New Zealand educators with practical strategies, suggestions and resources to support the diverse needs of all learners.

Attitude Toolbox: The Whole Truth about Courts and Justice


This accessible video has information about the New Zealand justice system and courts. The video is presented in New Zealand Sign Language and fully subtitled in English.

New Zealand Health Practitioners Disciplinary Tribunal


This Tribunal hears and determines disciplinary proceedings brought against health practitioners.

Public Trust


Public Trust is New Zealand’s largest provider of Wills and estate administration services.

Te Rōpū Taurima


Te Rōpū Taurima is a kaupapa Māori service that supports people of all ethnicities with intellectual impairments around New Zealand.

Le Va


Le Va supports Pasifika families and communities to unleash their full potential and have the best possible health and wellbeing outcomes.

Blind Low Vision NZ

(previously called Blind Foundation)


Blind Low Vision NZ is New Zealand’s main provider of support to New Zealanders who are blind or have low vision.



Phone: 0800 24 33 33

Achieve is a national network established to ensure equal opportunity and access to post-secondary education and training for people with impairments.

Privacy Commissioner


Phone: 0800 803 909
Email: enquiries@privacy.org.nz

You can download the pamphlet “Your Health Information: Know Your Privacy Rights” from the Privacy Commissioner’s website, at: www.privacy.org.nz

You can also download a copy of the Health Information Privacy Code from: www.privacy.org.nz/the-privacy-act-and-codes/codes-of-practice/health-information-privacy-code-1994

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