Supported Decision Making In NSW

Supported Decision Making In NSW

Supported Decision Making In NSW

When a person loses their capacity to make important medical or healthcare decisions, they may need help from a substitute decision maker. Supported decision makers prioritise the person’s wellbeing and care, and they assist people in making good choices through support and guidance.

Find out more about supported decision makers, what types of decisions are made, who is eligible and what important points need to be considered.

Let’s take a closer look.

Why Do We Have Supported Decision Makers?

Substitute decision makers provide practical assistance to those who can no longer make their own medical or healthcare choices and need support. For example, an adult with a disability such as a cognitive impairment may have a limited decision making capacity and require help when making their own decisions. Practical assistance will be offered, which can involve explaining and clarifying information, identifying risks, helping them weigh options to make an informed decision and creating opportunities to try new things. A crucial element of effective decision making is getting to know the person and understanding their likes and dislikes, which can ensure their decision maker guides them on their own path.

A substitute decision maker will make a choice on their behalf, which can be legally binding. They must determine what the person would have wanted and what is in their best interests. Using a substitute decision maker means that the person retains choice and control and feels respected and heard, which can positively affect their mental health.

What Is The Law In Australia Regarding Decision Making?

The UN Convention on the Rights of Persons with Disability states that people with a disability should be recognised as equal under the law; having choice and control is a fundamental human right. The law automatically grants rights to someone to make appropriate choices on their behalf if they lose the capacity to do so themselves.

In New South Wales, the Guardianship Act contains the relevant legislation surrounding health care decisions. The powers of a substitute decision maker are managed at a state level and considerations and eligibility can vary depending on where you live.

What Things Must A Substitute Decision Maker Consider?

An appointed substitute decision maker must spend time with the person and speak with friends, family and health professionals to understand the person’s preferences. Consider the person and what is important to them and try to make a choice that they would have made themselves. 

Supporting decisions that the person has made, helping to provide good assistance and understanding their communication style are crucial elements of effective support.

It is vital that a substitute decision maker talks to the person about their values and preferences concerning health care and understands their beliefs and what is important to them. This can be crucial with making important decisions on their behalf.

Day to day responsibilities of a substitute decision maker might include:

  • Acting in the person’s best interests
  • Making choices that they would have made themselves
  • Understanding their medical condition and future complications
  • Understanding future medical care requirements and potential risks
  • Carefully consider their choices, particularly with end of life care
  • Discuss and document choices with their family and friends
  • Accept that they may change their mind
  • Respect their choices
  • Support the person to make good choices

Are There Different Types Of Decision Makers?

An appointed substitute decision maker can help a person make a choice about their health and lifestyle or financial and legal affairs. A person can have more than one substitute decision maker.

Depending on where you live a substitute decision maker may be referred to in different ways, such as:

  • Enduring guardian
  • Attorney
  • Agent
  • Decision maker
  • Person responsible

What Types Of Decisions Are Made?

A guardian will generally make health and lifestyle decisions. They may include where a person lives, their health care, and what dental or medical treatment they require. The substitute decision maker will need to make important medical decisions, and to do so, they need to ensure they have adequate health care information and understanding of their needs, which may include cultural, spiritual and religious preferences. 

It is also vital that they consider creating an advance care directive and understand the person’s end of life choices, as they may be required to choose whether life sustaining medical treatment be provided.

A doctor will make decisions regarding the patient’s medical treatment by following good medical practice. They will work with their family and the decision maker to deliver appropriate treatment.

Making important decisions regarding living arrangements on someone else’s behalf can be difficult, particularly as the availability of a carer or family and personal circumstances may influence it. Generally, most people prefer to stay in their homes than move to residential care; wherever possible, you should follow the person’s written or spoken preferences. The decision maker must consider costs and burden to family members, and choosing an option that provides care and maximises their wellbeing should be paramount.

Healthcare professionals must abide by decisions made by a substitute decision maker, as the legal effect of a decision maker is the same as if the person had made the decision themselves.

Financial management decisions cover all financial aspects, including asset management, everyday bills and spending, debts and estate planning.

In some cases, they may have formally documented their preferences, or they may not have been written down but expressed through conversations. An attorney may have already been appointed as a decision maker, and in this case, there may be more than one person acting as a guardian on behalf of the person.

How Are Substitute Decision Makers Appointed?

A substitute decision maker can be appointed in several different ways. A tribunal can select one if a person has not already been assigned a substitute decision maker. 

When someone loses the capacity to make their own decisions, the law automatically grants rights to someone to make decisions on their behalf. This is called a statutory health attorney. 

People may choose their substitute decision maker when they still have the mental capacity. This can be done formally by creating an enduring power of attorney or enduring guardianship. 

An enduring guardianship is a legal document that states who they wish to make their future health and lifestyle decisions if they can no longer choose for themselves.

An enduring power of attorney is a legal document that states who they wish to make their future financial and legal decisions if they lose the capacity to choose for themselves.

Several law courts and tribunals in NSW can assign a private guardian. The NSW Civil and Administrative Tribunal Guardianship Division, the Supreme Court of NSW or the Mental Health Review Tribunal can all appoint substitute decision makers. 

The chosen person will usually have a close and continuing relationship, such as a spouse or another family member. A substitute decision maker can be someone other than the person’s paid carer.

If a person has yet to choose someone or if no one meets the criteria, the law will appoint a public guardian, such as a guardianship tribunal.

Who Is Eligible to Be A Substitute Decision Maker?

  • Must be a least 18 
  • Have the capacity 
  • Be available and willing to do the job
  • Be able to make decisions in stressful situations
  • Effectively follow instructions

Summary

Substitute decision makers provide practical assistance to those without the cognitive ability to make their own medical or healthcare decisions and need support.

The law automatically grants power to someone to act as a representative if a person loses the capacity to do so themselves.

The substitute decision maker may need to make important medical decisions, and to do so, they need to have adequate health care information and an understanding of their needs; this may include cultural, spiritual and religious preferences. 

They help communicate what the person would have wanted and what is in their best interests. Using a substitute decision maker means that the person retains choice and control and feels respected and heard, which can positively affect their mental health.

FAQs

What Are The Benefits Of Supported Decision Making?

Substitute decision makers provide practical assistance to those who have lost the ability to make their own medical or healthcare decisions and need support, like explaining and clarifying information, identifying hazards, and helping people weigh up options to make an informed decision. Considering the person and what is important to them and helping them make decisions they would have made themselves. Using a substitute decision maker means that the person retains choice and direction and feels respected and heard, which can positively affect their mental health.

What Is An Example Of Supported Decision Making?

The substitute decision maker will need to make important medical decisions, and to do so; they need to ensure they have adequate health care information and an understanding of their needs; they must understand their end of life decisions, as they may be required to choose whether life sustaining medical treatment should be provided.

Other examples may include where a person lives, the health care they receive and what dental or medical treatment they require.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Suppored Decision Making or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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