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:
- someone you choose – If you’ve already 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 choose who might make make decisions for you: Enduring powers of attorney”).
- the Family Court, or someone who the Family Court chooses – If you haven’t chosen someone to make decisions for you through an EPA, your loved ones can ask the Family Court to either make decisions for you, or to appoint someone to make decisions for you (see: “When judges and others can make decisions for you”).
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.
