Substitute Decision Making
How to make decisions on behalf of others
Principles of decision making
The Guardianship and Administration Act 1993 outlines principles to guide decision makers appointed under this legislation. Decision makers make substitute decisions on behalf of individuals who cannot do this for themselves. Whether or not you are appointed by an order of South Australian Civil and Administrative Tribunal, these principles should be taken into consideration when making decisions on behalf of someone who does not have the mental capacity to do so for themselves.
“Principles to be observed
Where a guardian appointed under this Act, an administrator, the Public Advocate, the Tribunal or any court or other person, body or authority makes any decision or order in relation to a person or a person's estate pursuant to this Act or pursuant to powers conferred by or under this Act—
(a) consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and
(b) the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and
(c) consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and
(d) the decision or order made must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with his or her proper care and protection.”
Substitute Decision making - applying past wishes, values and attitudes
Substitute decision making means that someone “stands in the shoes” of the person with the mental incapacity and tries to make the decision that the person would have made for themselves if they could still make that decision. This is the “paramount” or most important consideration for the decision maker.
Making substitute decisions differs from making “best interest decisions”. It requires the decision maker to understand the person’s history, values and past lifestyle so that the best fit decision can be made. The decision maker is applying that person’s values and life experience to the decision rather than applying community values and standards or the action which might objectively produce the best outcome for any individual.
Decision makers may need to seek information and advice from others who know the person in order to get the fullest understanding of their values, attitudes and past behaviour.
When managing the financial affairs on behalf of another, the attorney or administrator must also take into consideration the financial position of the person and make prudent decisions on their behalf. They are acting as a Trustee and therefore have certain obligations under the law.
Finding out current wishes
Wherever possible the views of the person should be sought even if they are not fully able to comprehend their circumstances. Sometimes their views will not be shown in words. Behaviour including reactions to different things or people will help you to understand what impact certain decisions might make upon them.
In the absence of any decision to the contrary, a person’s capacity to make decisions must be presumed and therefore their current wishes apply. We also refer to a person’s capacity or incapacity to make a decision to be decision specific. Capacity may change with complexity of a decision or may fluctuate over time.
Even where a legally appointed decision maker exists, a person may be able to make some decisions for themself. This option should be explored and their decision making processes supported if it is believed that the person can make some decisions.
Preserving informal arrangements
Many people have networks of family members, friends or members of the community who help people solve their issues on a day to day basis. Where incapacity exists, these people would be expected to act in a supportive way and to take into account past and current wishes. These individuals are said to be acting informally.
A decision maker appointed through some legal process would only question or change these arrangements if they were detrimental to the person or against their wishes or it was clear that they had legal responsibility for certain actions which had been previously undertaken informally.
Decisions which are least restrictive of rights
Most societies seek to assist at risk adults and, if necessary, protect them from their own risky decision making or from the behaviour of others. This should be done with the minimum intrusion on their rights.
Many decisions made by substitute decision makers will require balancing competing considerations of risk and protection. Sometimes knowledge of past values, attitudes and behaviour and current wishes will provide clear guidance to the decision maker. On other occasions this information is not available and the decision maker will need to consider different courses of action in terms of-
- What is the benefit or burden to the person
- What are the risks and consequences of the alternatives
- What would others of similar age background usually do in this situation
- What do others believe is the best course of action