Disability Rights
Decision-making: When others can legally make decisions for you
When judges and others can make decisions for you
Overview
Protection of Personal and Property Rights Act 1988, ss 5–18, 36, 65
The law says that people over 18 years old can make their own decisions about their lives. Only a judge can decide that a person isn’t capable of making their own decisions.
If you or someone close to you thinks that you can’t make your own decisions about important things and you haven’t made an EPA, you or they can ask the Family Court to make decisions for you, or let someone else be your decision-maker.
If you go to the Family Court about this, here are some important things to know:
- You will have your own lawyer, speaking up for you. The government will pay for this lawyer if you can’t afford to.
- The Family Court Judge will find out what you can decide for yourself, and make sure you’re still able to have as much control over your life as you can.
- The judge can make different kinds of “orders” about what’s going to happen in your life.
- The judge can appoint other people to make decisions for you.
- These people have to make decisions in your best interest, and the Family Court will make sure they’re doing that.
- These people have to encourage you to develop and use your understanding of decisions (and their consequences) about your personal care, welfare, or property, as well as the capacity you have to communicate those decisions.
Decisions about where and how you live (personal care and welfare)
Protection of Personal and Property Rights Act 1988, ss 8–10, 18–23
First, the judge will decide if you’re able to make decisions yourself, and if you can communicate them to other people.
If not, the judge can either:
- make “Personal Orders” about things like where you live, who looks after you, and what kind of education or therapy you will have, and/or
- appoint a “welfare guardian” who can make those decisions for you.
Either way, the judge will make sure you have as much control over your life as you can, and that you’re given the chance to use and develop your decision-making abilities however possible.
Decisions about your money and property
Protection of Personal and Property Rights Act 1988, ss 11, 24–34
If you can still make decisions, but you need some help with your money and property, you can ask a trustee company for help. Two doctors need to agree that you need help, and you need to sign a document saying it’s what you want. You have to get independent legal advice about the application, the consequences it will have, and your rights to stop the trustee corporation from managing your property.
If you can’t make decisions about your money or property, the Family Court can
- make “Personal Orders” about money or property worth $5000 or less, or income of $20,000 a year or less, or
- appoint a “property manager” to make decisions for you, if your money or property is worth more than $5000 or your income is more than $20,000 a year.
