Are you worried about an adult child who may be at risk of abuse, exploitation or neglect because of a decision-making disability? There are important steps you can and should take, but they may not come immediately to mind when thinking about this issue. Protecting your child and preserving the best possible quality of life, depends on sound legal advice.
Three principles shape this area of law:
- People who have reached the age of 18 are legal adults who are presumed, absent evidence to the contrary, to have the capacity to make decisions for themselves;
- Capacity is a shifting and nuanced thing – very specific to an individual, the nature of a disability and the kind of decision required; and
- The law favours solutions that preserve the maximum possible decision-making autonomy for people with disabilities.
Because these principles involve balancing competing interests and careful communication among all involved, it is generally best to start planning as early as possible. It is important to involve health care professionals and a lawyer.
Decision-making capacity
Reduced decision-making ability may be the result of an intellectual disability present from birth, mental illness or acquired brain injury. These may present themselves very differently, fluctuate in severity or affect some kinds of decisions but not others. As an example, the disability may, for instance, affect financial decisions but not medical matters or issues of self-care.
Keep in mind that even those with impaired decision-making abilities may often be supported to make their own decisions through careful communication. To the extent that informal decision-making support works well and without risk of undue influence, this is often the solution that works best.
If you have not already done so, it would be wise to involve a health professional or service provider in evaluating your child’s decision-making ability. If they conclude that your adult child can make informed decisions, then you may offer advice and support. But your adult child will be decision-maker.
What parents cannot do for an adult child
It is not possible for a parent to make either an enduring power of attorney or enduring power of guardianship on behalf of an adult child. It is also not possible to nominate someone to be the guardian of your adult child in your Will.
If a substitute decision-maker is required, a guardian or administrator may be appointed by the State Administrative Tribunal.
Generally, only a tribunal can make certain decisions, such as those about:
- sterilisation;
- termination of pregnancy; or
- electro-convulsive therapy or psychotherapy.
Before reaching out to a tribunal, a better alternative may be to speak with family and friends about who might be available to help the person with a decision-making disability in the future. This might be as simple as giving people the contact details for the Office of the Public Advocate or the tribunal so that they know who to contact in the future.
Guardianship and Administration Act 1990
The Guardianship and Administration Act 1990 recognises that adults who are not capable of making reasoned decisions for themselves may need additional support and assistance to avoid neglect, exploitation and abuse. It enables a substitute decision-maker to be appointed to make decisions in their best interests.
There are two main types of substitute decision-makers: a guardian and an administrator.
- Guardianship applies to personal, lifestyle and medical treatment decision-making; and
- Administration applies to financial and legal decision-making.
To apply to have a guardian or administrator appointed, a parent must complete an application form available from the State Administrative Tribunal.
A plenary appointment allows a guardian or administrator to make all the decisions and perform all the functions that the represented person could perform if they did not have a disability. A limited appointment allows a guardian or administrator to make only the decisions or perform only the functions specified in the order. A plenary guardian will not be appointed if a limited guardian would be sufficient to meet the person’s needs.
The appointments are not permanent. The tribunal is required to review each order every five years. Depending on the circumstances of the case, a review may be conducted sooner.
If you have questions about how you can protect your adult child whose disability makes it difficult or impossible for him or her to make important life decisions, please call us at 1800 770 780 to schedule a consultation. The attorneys at Owen Hodge Lawyers would be happy to provide guidance and information.