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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: peoplefirst.org.nz/news-and-resources/easy-read-resources

New Zealand has a system called a “substitute decision making approach”. This means that your power to make decisions for yourself can 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.

Is there a better approach we could take?

The UN Disability Convention considers the best system is a “supported decision making approach”. This means that disabled people will always have the right to make decisions for themselves, and they are provided with the support, advice, and information they need to do this.

If New Zealand was to follow the UN Disability Convention’s recommendations, we should be:

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

However, even though New Zealand has signed up to the Convention, the rights in the Convention are more like recommendations rather than being automatically part of New Zealand law.

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.

When might my decision making powers be transferred to someone else?

The first step is to decide whether or not you are mentally capable of making decisions for yourself. This is sometimes called “mentally capable,” “mental capacity,” or “legal capacity”. The answer to whether you have legal capacity could change throughout your life:

  • Sometimes people only lose legal capacity temporarily. For example, if they get unwell, and become unable to make decisions for themselves during that time.
  • Sometimes people lose legal capacity permanently – for example, if they develop dementia, or a degenerative disease.
  • If someone has had a condition since birth or childhood that means that they aren’t able to make decisions for themselves, usually their parents can make decisions on their behalf until they turn 18. Once they turn 18, their parents no longer have that power and they’d have to apply to the Family Court (see more information below: “Making decisions for children and teenagers”).

If it’s decided that you aren’t mentally capable, then your powers to make decisions for yourself will be transferred to some other person.

Making decisions for children and teenagers

Care of Children Act 2004, s 28 Case: [2008] 1 NZLR 409

In most cases, your parents are your legal guardians until you turn 18. As your guardians, they can make decisions for you. Usually, as you get older, your parents’ power to make decisions for you will reduce, and you’ll be given more freedom to make your own decisions. This depends on you, your level of maturity, and your ability to understand and communicate your decisions.

If you have a disability or impairment as a teenager, and this reduces your ability to make decisions for yourself, your parents will likely continue to help you make major decisions (or make them on your behalf) right up until you turn 18.

After you turn 18, your parents can continue to help you informally, or they might ask the Family Court to appoint themselves as your “welfare guardian” (see: “When judges and others can make decisions for you”).

Who will make decisions on my behalf?

If you aren’t mentally capable, the power to make decisions about your care, welfare, and property can be transferred to either:

What decisions can the Family Court make for me?

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

The Family Court can make a decision about your care and welfare, like where you should live (this is called a “Personal Order”).

Through a Personal Order, the judge can also put in place other support you need to be able to make your own decisions. For example, the judge might set up an informal arrangement with a “circle of friends” (family, friends, neighbours and health professionals) to give you information, help you come to a decision, and help you communicate these decisions.

This is a form of the supported decision making approach (this is explained in more detail under “Is there a better approach we could take?”).

Note: An important principle in the Act is that the judge should intervene in your life as little as possible. The judge should help and encourage you to make decisions for yourself as much as you can.

Did this answer your question?

Disability rights

Where to go for more support

Community Law

Your local Community Law Centre can provide you with free initial legal advice.

Find your local Community Law Centre online: www.communitylaw.org.nz/our-law-centres

Auckland Disability Law (ADL) provides free legal services to disabled people associated with their disability related legal issues. ADL is the only specialist disability law community law centre in Aotearoa New Zealand.

Website: www.aucklanddisabilitylaw.org.nz/
Email: info@adl.org.nz
Phone:  09 257 5140
Text only: 027 457 5140

Disabled Persons Assembly

DPA is a pan-disability organisation run by and for disabled people. DPA and its members work with the wider disability community, other disabled persons’ organisations, government agencies, service providers, international disability organisations and the public.

Website: www.dpa.org.nz
Email: info@adl.org.nz
Phone:  04 801 9100
Facebook: www.facebook.com/dpa.nz.7

Nationwide Health & Disability Advocacy Service

The Nationwide Health & Disability Advocacy Service offers free, independent, and confidential advice to support you in resolving issues with health and disability services.

Website: www.advocacy.org.nz
Email: advocacy@advocacy.org.nz
Phone:  0800 555 050

Le Va

Le Va is working with Manatū Hauora/Ministry of Health to support Pasifika people with disabilities and their families.

Website: www.leva.co.nz/our-work/disability-support
Email: admin@leva.co.nz
Phone:  09 261 4390
Instagram: www.instagram.com/Levapasifika
Facebook:  www.facebook.com/LeVaPasifika

Te Rōpū Taurima

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

Website: www.terooputaurima.org.nz
Email: info@terooputaurima.org.nz

People First New Zealand

People First New Zealand is a self-advocacy organisation that is led and directed by people with learning disabilities.

Website: www.peoplefirst.org.nz
Email: ask@peoplefirst.org.nz
Phone:  0800 20 60 70

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.

Website: www.deaf.org.nz
Email: hello@deaf.org.nz
Phone:  0800 33 23 22
Freetext:  8223
Instagram: www.instagram.com/DeafAotearoa
Facebook: www.facebook.com/deafaotearoanz

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.

Website: www.blindlowvision.org.nz
Email: generalenquiries@blindlowvision.org.nz
Phone:  0800 24 33 33
Instagram: www.instagram.com/BlindLowVisionNZ
Facebook:  www.facebook.com/BlindLowVisionNZ

Sign Language video about the courts and justice



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

Website: www.achieve.org.nz
Email: info@achieve.org.nz
Phone:  03 479 8235

Inclusive Education

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

Website: www.inclusive.tki.org.nz
Email: inclusive@tki.org.nz

Government Agencies

Whaikaha/Ministry for Disabled

Whaikaha is the Ministry for Disabled People. On the website, it contains information about how to access support and funding and has a directory of advisory services.

Website: www.whaikaha.govt.nz
Email: contact@whaikaha.govt.nz
Phone:  0800 566 601
Text: 4206
Communication can also be made through NZ Relay Calls

Health and Disability Commissioner

The Health and Disability Commissioner website sets out your rights under the Code of Health and Disability Services Consumers’ Rights and how you can make a complaint to the Commissioner.

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

To make a complaint online: www.hdc.org.nz/making-a-complaint/make-a-complaint-to-hdc

Office for Disabled

The Office for Disabled is administered by a small team from Whaikaha, and works closely with government agencies and the disability sector to make the best decisions for disabled people.

Website: www.odi.govt.nz
Email: office_for_disability_issues@whaikaha.govt.nz
Phone:  0800 566 601

Ministry of Health Services and Support

Website: www.health.govt.nz/your-health/services-and-support

Te Kāhui Tika Tangata/Human Rights Commission

The Human Rights Commission website provides information about human rights in Aotearoa and outlines how you can make a complaint to the Commission about individual or systemic disability discrimination.

Website: www.tikatangata.org.nz/ or www.hrc.co.nz
Email: infoline@hrc.co.nz
Phone:  0800 496 877 (0800 4 YOUR RIGHTS)

To make a complaint online, download a complaint form or find out more about the complaints process: www.tikatangata.org.nz/resources-and-support/make-a-complaint

Privacy Commissioner

The Privacy Commissioner website provides information about your rights and responsibilities under the Privacy Act 2020 and the Privacy Principles. It also outlines the role of the Privacy Commissioner and how to make a privacy complaint.

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

To make a complaint: www.privacy.org.nz/your-rights/making-a-complaint

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