Substitute decision-making

The practice of substitute decision-making for people lacking capacity lies between two of the governments competing duties towards vulnerable people; firstly to respect their autonomy and secondly to protect them. We have found that NSW legislation is developed on allowing people to make decision now about their future decision and consider a situation where they have lost capacity as a result of dementia or other conditions making people legally incapable of making decisions themselves.

Despite the availability of the NSW legal provisions many people do not consider the implications of  loss of capacity until it is too late, thus many only confront the issue when a diagnosis is made and capacity is usually already affected. Early detection of dementia therefore increases the chance available for individuals to plan for a loss of capacity. Additionally to ensure the validity of the instruments provided by legislation when a lawyer is asked to assist and suspect’s incapacity, they must seek assessment by a general practitioner or a specialist to ensure the document is valid and preventing future disputes.

Planning can allow for the implementation of;

• Advanced care directives
• Powers of Attorneys
• Enduring Guardianship

Instruments which will protect the choices that you want to make now and in the future, and will ensure they apply even after you are incapable of making these decisions yourself.

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