Guiding Arnold and Caroline through supported decision making
Written by Maria De Paz
Supported decision-making is helping another person to make their own choices and have control over the things that impact and are important to them.
Arnold*
Arnold* is 35 years old living with an intellectual disability. He had a guardianship order appointing the Public Guardian as his guardian. He was looking to gain more independence by making his own decisions with support from those close to him and involved in his care.
The Public Guardian was appointed as Arnold’s substitute-decision maker in 2017 with authority to make decisions about his accommodation. At the time, the agreed arrangements for Arnold was to reside in a supported independent living accommodation. While he was content with this, the following year, he expressed his desire to his appointed public guardian to have the option to stay overnight at his family home every week to be closer to his parents.
The appointed public guardian assessed how this could be made possible for Arnold. What they found was that:
- Arnold was receiving appropriate and consistent access to services under his National Disability Scheme (NDIS) plan
- Arnold was satisfied with the support he received from staff at his supported independent living accommodation
- all the service providers involved in his welfare were from separate organisations and regulated by the National Disability Insurance Agency (NDIA). This meant that there was oversight to promote decisions being made in Arnold’s best interest.
The Public Guardian was satisfied that Arnold was appropriately supported to make and enact decisions relating to his overnight stays with his family. The matter was brought to the NSW Civil and Administrative Tribunal (NCAT) for review of the guardianship order . The Public Guardian recommended that Arnold no longer needs a guardian to make decisions about his accommodation as he can make those decisions with support. NCAT accepted this in 2018 and his order lapsed.
Definitions
- independent
Free from outside influence or control.
- Tribunal
A legal forum to make and review decisions and settle conflicts. Tribunals are like courts but are usually more specialised and less formal.
Decision-making and capacity
There are situations that can affect someone’s decision-making capacity, such as:
- lacking capacity due to disability (including age-related condition, intellectual disability, brain injury or mental illness)
- temporarily lacking capacity e.g. during a coma following an accident
- being able to make some decisions and not others.
Many factors can influence how a person makes decisions, but good support is key to building ability. Providing support or making reasonable adjustments to meet a person’s needs can help them to make their own decisions and have decision-making independence.
Support to make decisions can look like:
- providing information in a way the person understands
- understanding a person to better promote their values and vision for their own life
- showing a person greater choices and options and following and respecting their preferences and decisions.
Caroline*
Caroline* is 30 years old with an intellectual disability and lives by herself in a private rental. She has a financial management order that appoints NSW Trustee and Guardian to manage her finances. She was looking to gain more financial independence to manage her pension.
Supported decision-making in financial management can be trialled through self-management. Self-management authorises the customer to deal with a specific portion of their financial affairs where they demonstrate skill and ability, as described in Section 71 (2) of the NSW Trustee and Guardian Act 2009.
Caroline demonstrated that she had been managing her water and gas bills by setting up direct debits on her own. There was no money owing. Her support worker provided their view on the matter and supported Caroline’s goal for self-management.
NSW Trustee and Guardian was satisfied with Caroline’s demonstrated ability in managing her current bills, along with the advocacy from her support worker. A Section 71 (2) was authorised for her to begin managing her pension on a 12-month trial for review at the end of the period.
Definitions
- financial management order
A legal decision made by a court or tribunal appointing a person or organisation to make legal and financial decisions on behalf of someone who is not able to make such decisions for themselves.
- Supported decision-making
Helping someone to understand and make their own decisions, so they remain in control of making decisions that are important to them.
The need for supported decision-making
There has been growing conversations on giving people with disability the right support to make their own decisions that impact and are important to them.
The recent coverage of Britney Spears’ 13-year campaign resulted in the revocation of her conservatorship held by her father, Jamie Spears. It was reported that Jamie did not adequately support Britney, give her choices to control parts of her life, or respect her preferences.
A conservatorship in the USA appoints a conservator to have legal responsibilities over a person that is unable to make legal, medical or financial decisions on their own.
Conservatorships don’t exist in Australia and are instead generally separated into two appointments. In NSW, attorneys and financial managers only have authority to make financial and legal decisions on behalf of a person, and guardians only have authority to make health and lifestyle decisions.
Where a person does not have a valid power of attorney or enduring guardianship in place, and they lose capacity to make their own decisions, a court or tribunal may appoint a person to make those decisions. Where no suitable or available person is identified, the NSW Trustee may be appointed as a last resort to be a person’s financial manager. The Public Guardian can be appointed as a person’s guardian as a last resort.
Supported decision-making is a human right; substitute decision-making is a last resort.
Definitions
- substitute decision
A decision made by an appointed financial manager or guardian on behalf of a person under a financial management or guardianship order. The legal effect of a substitute decision is the same as if the person had made the decision themselves.
- supported decision-making
Helping someone to understand and make their own decisions, so they remain in control of making decisions that are important to them.
- tribunal
A legal forum to make and review decisions and settle conflicts. Tribunals are like courts but are usually more specialised and less formal.
- Supported decision-making
Helping someone to understand and make their own decisions, so they remain in control of making decisions that are important to them.
How we practice supported decision-making:
We work with customers with either a financial management order or a guardianship order who may have a goal to eventually make their own decisions. By working with family, supports and service providers, we can see if the support the person needs is working effectively to help them to make their own decisions. It is then part of our role to advocate for the order to be changed or revoked.
"NSW Trustee and Guardian respects and promotes supported decision-making for our customers who would like more independence or to make their own financial, health or lifestyle decisions," says Megan Osborne, Acting Chief Executive Officer of NSW Trustee andGuardian. "We are guided by the principles set out in the NSW Trustee and Guardian Act 2009 and the Guardianship Act 1987 to always act in the best interest of our customers."
* Names and identifying details have been changed to protect the privacy of individuals.
Definitions
- revoke
Officially cancel either voluntarily or by operation of the law.
- supported decision-making
Helping someone to understand and make their own decisions, so they remain in control of making decisions that are important to them.
- financial management order
A legal decision made by a court or tribunal appointing a person or organisation to make legal and financial decisions on behalf of someone who is not able to make such decisions for themselves.