Proposal 5–10 State and territory governments should introduce nationally consistent laws governing enduring powers of attorney (including financial, medical and personal), enduring guardianship and other substitute decision makers.
Proposal 5–11 The term ‘representatives’ should be used for the substitute decision makers referred to in proposal 5–10 and the enduring instruments under which these arrangements are made should be called ‘Representatives Agreements’.
Proposal 5–12 A model Representatives Agreement should be developed to facilitate the making of these arrangements.
Proposal 5–13 Representatives should be required to support and represent the will, preferences and rights of the principal.
5.102 Enduring documents are important tools that respect autonomy and dignity as they allow individuals to appoint another individual to act on their behalf now and in the future if they lose decision-making ability, rather than relying on individuals and organisations appointed by the state. Nevertheless, enduring documents are not well understood by those who have appointed an attorney or guardian, those who have been so appointed and, more broadly, in the community. Significant numbers of submissions include instances of elder abuse which were at least, in part, contributed to because of a misunderstanding of the enduring document.
5.103 Through a model agreement, supported by nationally consistent legal frameworks, the proposal is designed to bring clarity to the nature of the relationship created by an enduring document, the powers and responsibilities it contains, and the safeguards in place to protect the principal. An important part of the proposal is using terminology that is more easily understood, and more reflective of, the nature of the powers and responsibilities set out in the enduring document. Building understanding of the role of the representative, their powers, and the limits of those powers are important protections against elder abuse (see Chapter 1).
5.104 An important benefit of adopting a single model agreement is that it will ensure consistency across Australia in the form and content of enduring documents, including terminology and assessments of capacity or decision-making ability. This would resolve current issues with enforcement and transferability across the states and territories. National consistency will particularly assist communities along state and territory borders and families where the attorney and principal live in different jurisdictions.
5.105 The proposal is that the model agreement should be a short, simple and easily ‘navigatable’ agreement that can be downloaded and edited. Importantly, the model agreement should give principals choice as to who they want to be their representatives, for what decision, and give the principal the option to exclude certain matters and powers. Choice is an important ingredient in giving the principal control over the nature and the extent of their relationship with the representative.
5.106 The proposal develops aspects of the ALRC’s Equality, Capacity and Disability Report which recommended a Commonwealth decision-making model, and the description of a substitute decision maker as a ‘representative’. The proposal seeks to give substance to this in the form of a model document.
5.107 Representatives agreements are intended to support the ‘paradigm shift’ in attitudes to substituted decision making reflected in the CRPD, which places the principal as the driver of decisions through their will, preferences and rights. This approach seeks to uphold individual autonomy. Under the Commonwealth decision-making model, enduring documents are currently one example of full support.
5.108 The Commonwealth decision-making model is primarily about supported decision making and the ALRC recognises that there are important forms of supportive decision-making mechanisms under Commonwealth and state and territory law, including, for example, correspondence nominee arrangements under Centrelink. While this proposal focuses on a form of substitute decision making, because of the particular instances of abuse that have been afforded by enduring documents, the ALRC continues to recognise the importance of supported decision-making mechanisms and the need, wherever possible, to avoid the appointment of substitute decision makers. This can be achieved by fully implementing the Commonwealth decision-making model recommended by the ALRC in the report Equality, Capacity and Disability.
5.109 State and territory laws are already moving away from a ‘best interests’ test that typically applied in enduring documents (particularly guardianship). A best interests test may subjugate the principal’s will and preferences to notions of objectively satisfactory decisions. The proposal builds on those incremental changes at the state and territory level to deliver comprehensive reform through a national model agreement—the Representatives Agreement.
5.110 The proposal recognises that single agreements that cover financial, medical and personal decisions have been successful in jurisdictions such as Victoria and Queensland. A single agreement, while permitting the principal to appoint different individuals for different types of decisions, may reduce confusion as to what enduring documents have been signed, clarify the roles of attorneys and guardians, and reduce confusion as to who needs to be contacted with respect to a substitute decision.
5.111 To highlight the active role of the principal, the proposal also seeks to move away from the term ‘appointments’ and replace it with ‘agreements’. The principal is making conscious decisions as to who will be responsible for making decisions on their behalf should they lose decision-making ability, and the terms and conditions under which those responsibilities will be exercised.
5.112 There was broad support in submissions for harmonising state and territory laws on enduring documents including from welfare organisations, community legal centres and the Australian Bankers Association. The Law Council of Australia explained that it
supports the harmonisation of powers of attorney and guardianship laws in each State and Territory. At present there is no consistency in State and Territory laws and instruments of powers of attorney and enduring guardianship. Uniformity would reduce the current complexity and overlap in the application of the law in relation to powers of attorney and enduring guardianship.
5.113 Submissions also highlighted that national consistency would particularly assist communities along state and territory borders and families where the representative and principal live in different jurisdictions.
5.114 National consistency would greatly assist in implementing the proposal to establish a national register of enduring documents. While it would technically be possible to have a national register that includes different state and territory documents, this would not have the benefit of simplicity and certainty that would be created by a single agreement type that can be registered.
Commonwealth decision-making model
5.115 In Equality, Capacity and Disability, the ALRC recommended a new model for decision making to encourage the adoption of supported decision making at a Commonwealth level (the Commonwealth decision-making model). The Commonwealth decision-making model represents a significant shift in approaches to decision making. In Equality, Capacity and Disability, the ALRC noted that there was a question of how the ALRC’s model would interact with decision-making regimes under state and territory law. This proposal develops aspects of the ALRC’s Commonwealth decision-making model and in particular the description of a substitute decision maker as a ‘representative’. The proposal seeks to give substance to this in the form of a model document and national legislation to replace all existing enduring documents.
5.116 The application of the Commonwealth decision-making model to enduring documents will lead to consistency in terminology and greater understanding of the nature of the obligation of the representative. The basis for all representative decisions will be the will, preferences and rights of the principal.
5.117 The Commonwealth decision-making model does not start by questioning whether a person has the capacity to make decisions—reflecting a binary view of capacity and decision making. Instead, the model asks what level of support, or what mechanisms are necessary to support people to express their will and preferences. This recognises that the ability of a person who needs decision-making support ‘to exercise legal agency is dependent on the integrity, quality and appropriateness of support available’. The Commonwealth decision-making model recognises that there is a spectrum of support required—at one end is full support. Enduring documents are currently one example of full support or substitute decision making.
5.118 In the Equality, Capacity and Disability Report, the ALRC recommended a functional approach to assessing capacity or decision-making ability in accordance with the following guidelines:
All adults must be presumed to have ability to make decisions that affect their lives.
A person must not be assumed to lack decision-making ability on the basis of having a disability.
A person’s decision-making ability must be considered in the context of available supports.
A person’s decision-making ability is to be assessed, not the outcome of the decision they want to make.
A person’s decision-making ability will depend on the kind of decisions to be made.
A person’s decision-making ability may evolve or fluctuate over time.
5.119 The model Representatives Agreement should implement these guidelines in assessing the decision-making ability of a principal. The Victorian approach to ‘capacity’ under the Powers of Attorney Act 2014 (Vic) is broadly consistent with the Commonwealth decision-making model and may be a useful example when implementing the model Representatives Agreement. In addition, the South Australian principles approach in the Advance Care Directives Act 2013 (SA) may be another useful model.
5.120 The application of the Commonwealth decision-making model to enduring documents is likely to have a number of important outcomes. It would place the principal’s will and preferences at the centre of all decisions. It would also provide a consistent approach to assessments of decision-making ability under enduring documents in Australia, contributing to a better understanding of decision-making ability and the right of older Australians to have their will and preferences respected and implemented.
5.121 The ALRC proposes a move away from the terms attorney and guardian to adopt the term ‘representative’. The term ‘attorney’ has very legalistic connotations reflecting the commercial genesis of power of attorney arrangements (as described above). Guardianship has paternalistic connotations of care and responsibility. Neither accurately reflects the modern relationship between the representative and the principal. These terms deny the continuing importance of the agency and preferences of the principal. The terms may suggest that the substitute decision maker may act independently of the wishes of the principal or that the attorney has some special legal status above and beyond representing the principal.
5.122 The term representative is chosen because it is the one used by the ALRC in the Commonwealth decision-making model. It reflects that the substitute decision maker is in that role ‘with the will of the person’. The term is important in signalling that the role is to represent the principal, to give effect to the principal’s views, and only in very limited circumstances, when the will and preference of the person cannot be ascertained, make a substitute decision that respects and upholds the rights of the principal. This highlights that the will and preferences of the principal continue notwithstanding a loss of decision-making ability at law. If, for example, a resident in an aged care facility wants to go out for a coffee once a week – that is her preference. It is not to be overridden by her representative on the basis of financial prudence or austerity.
5.123 The term representative is also used to distinguish the arrangement from a substitute decision maker appointed by a court or tribunal. An appointed person may represent the principal but they are not the principal’s chosen representative. This is an important distinction.
5.124 As discussed in the Equality, Capacity and Disability Report, the terminology relating to capacity and decision making is often a contested area, but the development of a new lexicon of terms may help to signal the ‘paradigm shift’ in attitudes to decision making reflected in the CRPD. The term ‘representative’ is used in the Commonwealth decision-making model to signal that the role of a representative is to support and represent the will, preferences and rights of the person who requires decision-making support. ‘Representative’ was preferred over ‘nominee’ to signal the shift from existing decision-making arrangements in areas of Commonwealth law, including the NDIS and social security, both of which use the term nominee.
5.125 Using the term ‘agreement’ signals to third parties that the representative has not been appointed by some higher authority. The representative may only act in accordance with an agreement with the principal. That agreement can be set aside by a tribunal if the representative is acting against the will, preferences and rights of the principal. Many submissions highlighted a reluctance of third parties to question an attorney or guardian when they were prima facie acting against the express wishes of the principal. Examples in submissions include attorneys denying the principal funds for basic toiletries, small personal items and simple outings, and the unwillingness of residential aged care staff to question the attorneys’ decisions. These submissions highlighted a fundamental misunderstanding in the community of both the role of attorneys and guardians as well as the limits of their powers.
5.126 Using the term ‘agreement’ rather than ‘appointment’ may highlight the active role of the principal in the establishment of the arrangement. The representative has not been appointed by court or tribunal. As it is an agreement, the principal is making conscious decisions as to who will be responsible for making decisions on their behalf should they lose decision-making ability, and have chosen the terms and conditions on which those responsibilities will be exercised. The representative has also made an active choice by agreeing to act as the principal’s representative, and has agreed to the scope and limits of the powers set out in the Representatives Agreement.
5.127 Importantly, the term ‘agreement’ is not intended to be a synonym for contract. There is no benefit to be bestowed upon the representative by the principal under the agreement. In fact, the representative has, with a degree of selflessness, agreed to support and represent the principal.
State and territory reforms
5.128 There may be some resistance to the adoption of a model representative agreement on the basis that there has already been significant reform to enduring documents in a number of jurisdictions. For example, the new laws on powers of attorney in Victoria only came into force in 2015; and South Australia made significant reforms to advance care directives and substitute decision makers which replaced guardian laws in 2013. The ALRC considers that these are excellent reforms. As outlined above, the ALRC supports a number of safeguards introduced by Victoria in 2015. The ALRC also understands that significant and repeated change undermines certainty and understanding—two of the key objectives the ALRC is trying to support through proposing of these reforms.
Notwithstanding these concerns, the ALRC considers that the continued abuse of enduring documents necessitates reform. A national register supported by a single model agreement will assist in building protections against elder abuse for the long term. The ALRC also takes a national perspective and notes that there are state and territories that have not made significant changes in recent years to enduring documents. On balance, the ALRC considers that the long term reform objectives in protecting older persons from abuse outweigh the short term disruption of making these reform proposals in the context of an area of law that has already been recently amended.
Advance Directives Review Committee, Planning Ahead: Your Health, Your Money, Your Life. First Report of the Review of South Australia’s Advance Directives. (2008).
See, eg, Older Women’s Network NSW, Submission 136; The Public Trustee of Queensland, Submission 98; Office of the Public Advocate (Vic), Submission 95; Legal Aid ACT, Submission 58.
House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Older People and the Law (2007) 70.
Hume Riverina CLS, Submission 186.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) 142.
See, eg, Powers of Attorney Act 1998 (Qld) sch 1. However, best interests tests are still used, for example: Powers of Attorney Act 2000 (Tas) s 32(1A)(a).
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) 49–51.
Powers of Attorney Act 1998 (Qld); Powers of Attorney Act 2014 (Vic). But see also Medical Treatment Act 1988 (Vic).
Alzheimer’s Australia, Decision Making in Advance: Reducing Barriers and Improving Access to Advance Directives for People with Dementia (2006) 16.
See, eg, Hume Riverina CLS, Submission 186; Seniors Rights Service, Submission 169; Australian Bankers’ Association, Submission 107.
Law Council of Australia, Submission 61.
Hume Riverina CLS, Submission 186.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) 63–86.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014). Quoting PWDA, ACDL and AHR Centre, Submission 66.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) 67.
Advance Care Directives Act 2013 (SA) s 10.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) 68.
This formulation is currently used under the My Health Records Act 2012 (Cth).The term representative is also used in other jurisdictions, eg, Representation Agreement Act 1996 (British Columbia).
Justice Connect, Submission 182; Seniors Rights Service, Submission 169; Older Women’s Network NSW, Submission 136.
Powers of Attorney Act 2014 (Vic); Advance Care Directives Act 2013 (SA).
The Advance Care Directive Act 2013 (SA)is subject to a 5 year review in 2019, seeSA Health, Advance Care Directives Policy Directive (2014).