It’s up to us – the rising significance of family, carers and informal support systems
While politicians and Government will try to improve services being delivered to ageing and disabled Australians, in our experience, it is family, carers and community volunteers who bear the brunt of many personal care requirements for the vulnerable.
Rising community concerns about the occurrence of abusive and coercive conduct in dealing with the affairs of vulnerable Australians is well in evidence. A significant mischief that we observe is in the actions of family members who may hold enduring power of attorney or guardianship in ignoring the will and preference of the donor of their power.
The conflict of law that exists between the operation of the United Nations Convention on the Rights of People with Disabilities in Australia and the operation of State Law remains unresolved.
While we may seek to practice the National Decision Making Principles and implement Supported Decision Making as a decision making and estate administration methodology, we regularly come across those with enduring personal representation appointments arguing that their enduring role pre-empts the decision making rights of their donor.
In jurisdictions such as Queensland and ACT, which have a Human Rights Act, such a position in our view is simply fallacious. The fiduciary responsibility of an attorney or guardian is to act in the interest of the person under care.
In Jurisdictions such as NSW, the cost of taking action at NCAT or the Supreme Court is prohibitive for many people who want to simply give voice and respect to the will and preference of the person under care.
We need to understand the pivotal role of a person’s available cognition in that person being able to be an effective advocate for their own will and preference.
Our experience in operating the Capacity and Capability Clinic at Macquarie University Hospital since April 2020 has shown time and again that we cannot assume a person’s decision-making ability. It has to be understood in the context of what they are trying to achieve at the time.
The law requires we assume decision making capacity unless we are on notice of facts that make it unreasonable to do so. That said, once we are on notice of a decision making ability evaluation trigger, that fact does not remove a person’s decision making ability. The presence of such a trigger simply means we have to understand the decision making ability in the context of what the person is trying to do.
The idea that a person holding an enduring power of attorney or guardianship has the right to ignore the will and preference of their donor needs to be resolved as a matter of national law. It should not be for citizens to have to navigate and try to resolve the patchwork of Commonwealth and State Laws that currently apply.
The role of collaboration
In the mean time, it is a practical necessity that vulnerable Australians their family, careers and supporters look at collaborative principles such as those set out in the ISO standards 44001-3 as a framework that can help promote the common vision and values that can support and safeguard the interests of the vulnerable.
So, it’s up to us to evolve fresh models of care and service delivery to support families who will be challenged by increasing costs and declining availability in aged care services until the workforce problems in the sector are resolved.
In the meantime, a lot of the care delivery needs of older and ageing Australian will need to be taken up by families.
Establishing common values within an older person’s support group as a foundation for care delivery will remain fundamental to:
- assuring quality outcomes for the person under care, and
- mitigating the risk of abusive or coercive conduct emerging in the administration of their affairs.
As a private client law firm, our focus is on the support of the person under care. This starts with our commitment to practicing in accordance with the National Decision-Making Principles.
Michael Perkins is available to consult further about these issues to our clients, their family, supporters and carers and the members of our Community of Practice. Contact us.