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”.
Situations where you could lose the legal capacity to make your own decisions
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
