Decision making: When others can legally make decisions for you
Overview of New Zealand’s substitute decision making approach
Note: 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:
The New Zealand laws dealing with 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 make decisions. 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). They also have to take “appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” – in other words, they must make sure you’re given the support you need.
By contrast, New Zealand law is still based on a substitute decision making approach, where your powers to make decisions for yourself may be legally transferred to someone else.
New Zealand has signed up to the Convention, but that doesn’t mean the rights in the Convention are directly part of New Zealand law. In the meantime, the key New Zealand Act is the Protection of Personal and Property Rights Act 1988 – often called “the 3PR Act” or “the Triple PR Act” for short. 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.
The Protection of Personal and Property Rights Act does, however, provide some limited opportunities for Family Court judges to recognise and promote a supported decision making approach in particular cases. 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 into line with international law and enable disabled people to have more autonomy and control over their lives.
When and 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:
- if you have previously 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
- 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.
Situations in which you could lose the legal capacity to make your own decisions
There are a number of different ways in which 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 they want to continue to have that legal power, they will need to apply to the Family Court for it to appoint them to be 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 you are or are not 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.
Using New Zealand law to put in place a supported decision making approach, like a “circle of friends”
The Protection of Personal and Property Rights Act does give the courts a little room to promote a supported decision making approach. This can happen when a Family Court judge decides you do not have mental capacity and decides to make a “personal order” – which is the main type of order made in these cases to deal with 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” – this is 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.