Decision making for older people

Supported and substitute decision making in Victoria and the law

Understanding the role of support people

In Victoria, if a person can make their own decisions but may need some support to do so, they can appoint someone they trust to assist them to make, communicate and act on their decisions. These decisions may be about financial, lifestyle or medical issues.

There is different legislation regulating the powers of support people in Victoria. The Office of the Public Advocate (OPA) website includes information, fact sheets and forms. An Advice Service is also available if you need clarification.

In Victoria, there are a number of legally recognised support roles, made under different Acts:

• Supportive attorney - Powers of Attorney Act 2014 (Vic)
• Support person - Medical Treatment Planning and Decisions Act 2016 (Vic)
• Plan nominee - National Disability Insurance Scheme Act 2013 (Vic)
• Nominated person - Mental Health Act 2014
• Supportive administrator (financial and legal decisions) or supportive guardian (medical treatment and lifestyle decisions) - Guardianship and Administration Act 2019 (Vic)

As a clinician it is essential to establish if an older person you are working with has existing arrangements in place to help them make decisions. These arrangements may be formal or informal.

Ask the older person if they have appointed someone to help them to make decisions. Check if any arrangements were made under previous Acts as many will remain valid.

Understanding the role of the substitute decision maker

All adults are presumed to have the capacity to make decisions for themselves unless demonstrated otherwise. However, despite available supports, some people may not have capacity to make a specific decision. Whether a person has decision making capacity is decision specific, and a person may have the capacity to make some decisions and not others. Under the Guardianship and Administration Act 2019, a person has decision making capacity if they are able to:

• understand the information relevant to the decision and its effect
• retain the information to the extent necessary to make the decision
• use or weigh the information as part of the process of making the decision, and
• communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

If a person does not have decision making capacity in relation to a specific decision, the appropriate substitute decision maker must be identified.

If a person does not have decision making capacity in relation to a specific decision, the appropriate substitute decision maker must be identified.

If the decision is about medical treatment, this will be the person’s medical treatment decision maker. There is a hierarchy for determining the person’s medical treatment decision maker, and the first available and willing person from the list below will be the medical treatment decision maker:

• an appointed medical treatment decision maker
• a guardian appointed by VCAT
• the first of the following with a close and continuing relationship with the person:
  • the spouse or domestic partner
  • the primary carer of the person
  • the oldest adult child of the person
  • the oldest parent of the person
  • the oldest adult sibling of the person.

When making decisions about medical treatment, it is also important to find out if the person has made an advance care directive when they had decision making capacity to do so. An advance care directive is legally binding and may include instructional directives about medical treatment or refusal of care, and/or values directives about general preferences for care. An appointed medical treatment decision maker is also bound by an advance care directive. If necessary, VCAT can review an advance care directive to decide its validity or clarify its meaning.

If the decision is about another financial or lifestyle matter, the person’s enduring power of attorney will be their substitute decision maker.

Be aware that the legal context and decision-making powers of various roles can be misunderstood and confusing. Many people assume that if they are the ‘next of kin’ they automatically have the authority to make decisions on behalf of the older person. If someone indicates that they are legally able to make decisions on behalf of an older person in hospital, best practice involves clarifying what arrangements are in place, by requesting permission to sight, interpret, copy, and document and store any relevant documentation on the patient’s record. Familiarising yourself with some of the commonly appointed roles and responsibilities can help alleviate this confusion and help you to work with the older person and their family or carers.

VCAT appointment of a substitute decision maker

Any individual can make an application to the Guardianship List at the Victorian Civil Administrative Tribunal (VCAT) to determine whether or not a person is in need of a substitute decision maker where an enduring power of attorney and/or medical treatment decision maker has not been appointed, or where there are concerns as to whether the substitute decision maker is operating in the best interests of the person who appointed them. Under the Guardianship and Administration Act 2019, VCAT has the power to appoint a guardian and/or an administrator. VCAT also has the power to instead appoint a supportive guardian and/or a supportive administrator to assist a person to make their own decisions.

VCAT must always try to make an order that is least restrictive of the person’s freedom of decision and action.

A guardian may be appointed for a person who has a disability that is impairing their judgement where there is a need for a specific decision or multiple decisions to be made about lifestyle and healthcare matters. VCAT must be assured the guardian will act in the represented person's best interests. If there is no willing or suitable person to be appointed as a guardian, the Public Advocate can be appointed to this role as a limited or plenary guardian of last resort.

• A guardian can make decisions about health care, accommodation, employment, and access to people, including restricting or prohibiting particular people from having contact with the represented person.
• VCAT may make an order appointing a limited guardian (the order will specify the type of personal and lifestyle decisions that the appointed guardian can make) for the person, or on rare occasions a plenary guardian (this order enables the guardian to make all necessary personal and lifestyle decisions and may include medical decisions).
• The duration of an appointment is specified in the order. All orders must be reassessed within three years, and usually after one year. The date of the reassessment is usually written on the order. Sometimes there are ‘self-revoking orders’ which means that the order will expire on the specified date, unless someone seeks a hearing.

VCAT can also appoint an administrator to make financial decisions when a person cannot make reasonable judgements about managing their estate, and there are concerns about the decisions they are making, or about decisions that others are making for them.

For further information please refer to the Office of the Public Advocate website.

Informal arrangements

Often family and friends can informally assist someone with a decision-making disability to make decisions. As a clinician, you will be aware of cases where these types of arrangements work quite well, and this may mitigate the need to apply for a formal appointment through VCAT.

It is important to obtain consent from a person with decision-making capacity or their substitute decision maker and ensure that there is clarity around who is actually making the decision.

In cases where you believe the wishes of an older person with a decision-making disability are not being respected, or they are experiencing or are at risk of harm or neglect, explore your concerns with them and your team, and contact the OPA Advice Service.

Exploring decision making capacity in the context of lifestyle decisions

All individuals over the age of 18 are considered to have the capacity to make decisions until demonstrated otherwise. A decision to formally assess a person's capacity should always be specific to the decision(s) at hand and start from a presumption of capacity. A person's decision-making capacity is determined by their ability to:

• understand the information relevant to the decision and its effect
• retain the information to the extent necessary to make the decision
• use or weigh that information as part of the process of making the decision, and
• communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

Capacity is:

• domain specific (domains can include personal and lifestyle, finances, healthcare)
• decision specific (even within domains, for example, the person might be able to consent to a blood test but not to an amputation)
• time specific (note that capacity may fluctuate, for example, the older person might be better at certain times of the day).

Evidence of incapacity can include the person:

• not knowing or understanding the issues
• being unable to provide possible approaches to solving the issues
• not appreciating reasonably foreseeable circumstances
• making decisions based on delusional constructs
• having significant cognitive impairment.

If you suspect that the individual has a disability that is impairing their ability to make an informed decision, consider whether an assessment of decision-making capacity is required. If you can avoid an application to the Victorian Civil and Administrative Tribunal (VCAT) you may not need to complete a capacity assessment.

If the older person and their family agree with the treating team’s recommendation, you may be able to avoid a formal capacity assessment and an application to VCAT for guardianship.

If the person or their family disagrees with the treating team’s recommendation, and you have explored least restrictive alternatives, a formal capacity assessment should be completed to determine the extent to which their disability is affecting their ability to make the specific decision.

Assessing capacity is complex and multidimensional, and can be affected by a range of factors. Clinicians who are experienced in assessing cognition and capacity, such as neuropsychologists and geriatricians, should be used undertake a formal capacity assessment. The Office of the Public Advocate (OPA) can provide advice to health practitioners conducting assessments of decision-making capacity in relation to proceedings under the Guardianship and Administration Act 2019.