New legislation is needed to improve decision-making support and decision-making arrangements for adults with affected decision making, concludes Te Aka Matua o te Ture | Law Commission in its report He Arotake i te Ture mō ngā Huarahi Whakatau a ngā Pakeke | Review of Adult Decision-making Capacity Law published today.

The Law Commission recommends that a new Act replace the Protection of Personal and Property Rights Act 1988, which governs the law for enduring powers of attorney, welfare guardians and property managers. The Commission makes 175 specific recommendations on how a new Act can better respect the wishes and needs of adults with affected decision making and protect and promote their equality, dignity and autonomy.  The recommendations would also align the law in this area with the United Nations Convention on the Rights of Persons with Disabilities. 

The Protection of Personal and Property Rights Act 1988 was passed before the Convention on the Rights of Persons with Disabilities. The Act has a focus on the "best interests" of people subject to court-ordered decisions or representative arrangements (EPOAs or court-appointed representatives). This approach can often be paternalistic and result in people’s views being largely ignored. The PPPRA also does not expressly refer to decision-making support for people to make their own decisions or to participate in decision making. The current law has been criticised by the United Nations Committee on the Rights of Persons with Disabilities for not respecting the autonomy, will and preferences of people with affected decision making.

The current law is also confusing and inaccessible.

Mark Hickford, President of the Law Commission, says:

“We recommend that the Protection of Personal and Property Rights Act 1988 be replaced by a new Act that properly recognises the role that decision-making support can play in maximising a person’s agency. For example, we recommend the introduction of a new role of formal supporter, someone a person can appoint to assist them make their own decisions.

“We also recommend that, where a decision needs to be made on a person’s behalf, it be squarely centred on their wishes and values, except in the rare event it would expose them to a material risk of significant harm.

“The unifying theme of all our recommendations is the protection and promotion of people’s equality, dignity and autonomy.”

The Commission’s key recommendations include the following:

• A new Act should replace the Protection of Personal and Property Rights Act 1988. The two key purposes of a new Act should be:
  1. to protect and promote the equality, dignity and autonomy of people who require decision-making support or do not have decision-making capacity for some decisions; and
  2. to give effect to Aotearoa New Zealand’s international human rights obligations, including under the United Nations Convention on the Rights of Persons with Disabilities.
• A new Act should continue to provide for court-ordered decisions and a range of representative arrangements for people who may need others to make a decision or decisions on their behalf. However, these arrangements should be significantly reformed.
• Support for people with affected decision making should be a core focus of a new Act. Decision-making support should be defined and incorporated within the role of a representative. A new role of formal supporter should be established to help people to make their own decisions themselves.
• Where it is necessary for a decision to be made on behalf of a person, three key decision-making rules should apply. In summary, these are that:
  1. the decision should be centred on the person’s wishes and values and respect their rights;
  2. the person should receive decision-making support for the decision and have the opportunity to participate in it; and
  3. the decision should be based on relevant information.
• People exercising powers under a new Act should take tikanga into account when it is relevant in the circumstances.
• A voluntary register for enduring powers of attorney should be established on which people can choose to record matters such as the existence and location of their EPOAs.
• Oversight and support functions with respect to decision-making arrangements should be enhanced, including through establishing a complaints mechanism and developing guidance about representative and formal support arrangements.

In developing its recommendations, the Commission engaged and consulted with members of the public, interested organisations, relevant government agencies, legal and other professionals, and people with lived experience of disabilities and their family, whānau and carers.

The Government will now consider the Commission’s recommendations and decide whether to reform the law.