Representatives agreements

5.178  The ALRC suggests that, in developing a national model enduring document, consideration should be given to the form of the model being a Representatives Agreement. This would 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. This addresses the lack of understanding of the nature of the document and the relevant roles and responsibilities of the participants by those who have appointed an attorney or guardian, those who have been so appointed and, more broadly, in the community.[191] Significant numbers of submissions included instances of elder abuse which arose, at least in part, because of a misunderstanding of the enduring document.[192] For these reasons, notwithstanding a number of submissions suggesting that a change of terminology was not warranted and that the current terms were well understood,[193] the ALRC suggests proceeding with this reform as a longer-term strategy. The ALRC also acknowledges submissions that suggested that a change in terminology would require significant investment in a community awareness and education campaign.[194]

5.179  An important part of this suggestion 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.

5.180  This suggestion 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’.[195] The suggestion seeks to give substance to this in the form of a model document.

5.181  Representatives agreements are intended to support the ‘paradigm shift’ in supported 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.[196]

5.182  To highlight the active role of the principal, the term ‘appointments’ should be replaced 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.

Commonwealth Decision-Making Model

5.183  In the Equality, Capacity and Disability Report, the ALRC recommended a new model for decision making to encourage the adoption of supported decision making at a Commonwealth level.[197] 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. The suggestion in this Report develops aspects of the ALRC’s Commonwealth Decision-Making Model and, in particular, the description of a substitute decision maker as a ‘representative’.

5.184  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 would be the will, preferences and rights of the principal.

5.185  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.[198] 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’.[199] The Commonwealth Decision-Making Model recognises that there is a spectrum of support required—at one end is full support. Enduring documents are one example of full support or substitute decision making.

5.186  In the Equality, Capacity and Disability Report, the ALRC recommended a functional approach to assessing capacity or decision-making ability set out in Support Guidelines:

(a)     All adults must be presumed to have ability to make decisions that affect their lives.

(b)     A person must not be assumed to lack decision-making ability on the basis of having a disability.

(c)     A person’s decision-making ability must be considered in the context of available supports.

(d)     A person’s decision-making ability is to be assessed, not the outcome of the decision they want to make.

(e)     A person’s decision-making ability will depend on the kind of decisions to be made.

(f)     A person’s decision-making ability may evolve or fluctuate over time.[200]

5.187  The model Representatives Agreement should implement these guidelines where activation of a Representative Agreement is determined by 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 Support Guidelines and may be a useful example when implementing the model Representatives Agreement. The South Australian principles approach in the Advance Care Directives Act 2013 (SA) may be another useful model.[201]

5.188  The application of the Support Guidelines would 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.

Why ‘representatives’?

5.189  The terms ‘attorney’ and ‘guardian’ should be replaced with 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.[202] 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. Existing 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.

5.190  The term representative is chosen because it reflects 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 wishes to go out for a coffee once a week—that is the resident’s preference. It is not to be overridden by the resident’s representative on the basis, for example, of financial prudence or austerity.

5.191  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.[203] 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.[204] ‘Representative’ was preferred over ‘nominee’ to signal the shift from existing decision-making arrangements in areas of Commonwealth law, including the National Disability Insurance Scheme (NDIS) and social security, both of which use the term nominee.

Why ‘agreement’?

5.192  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 included attorneys denying the principal funds for basic toiletries, small personal items and simple outings, and the unwillingness of residential aged care staff to question an attorney’s decisions.[205] 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.

5.193  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 a 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 has 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.

5.194  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 may, with a degree of selflessness, agree to support and represent the principal.

[191]         Advance Directives Review Committee, Planning Ahead: Your Health, Your Money, Your Life. First Report of the Review of South Australia’s Advance Directives. (2008).

[192]         See, eg, Older Women’s Network NSW, Submission 136; Public Trustee of Queensland, Submission 98; Office of the Public Advocate (Vic), Submission 95; Legal Aid ACT, Submission 58.

[193]         See, eg, Law Council of Australia, Submission 351.

[194]         W Bonython and B Arnold, Submission 241.

[195]         Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) 142.

[196]         Ibid 116.

[197]         Ibid 63–86.

[198]         Ibid ch 2.

[199]         Ibid 93: quoting PWDA, ACDL and AHR Centre, Submission 66.

[200]         Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) 67.

[201]         Advance Care Directives Act 2013 (SA) s 10.

[202]         Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) 64.

[203]         Ibid 98.

[204]         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).

[205]         Justice Connect, Submission 182; Seniors Rights Service, Submission 169; Older Women’s Network NSW, Submission 136.