Page 2621 - Week 08 - Wednesday, 21 September 2022
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awareness of supported decision-making principles in the ACT guardianship and management framework.
These reforms are a critical first step in the journey toward the ACT adopting a supported decision-making model in the Guardianship and Management of Property Act. The current framework relies on a substitute decision-making model. This involves a guardian or property manager being appointed to make decisions for a person. Supported decision-making describes a human rights centred approach to help people with decision-making disabilities access the tools they need to make and participate in their own decisions, rather than decisions being made for them by a substitute decision-maker.
To explicitly introduce the concept of supported decision-making to the act, the bill makes two key changes. Firstly, before determining whether to appoint a guardian or manager, the ACAT will be required to specifically consider whether a person could access supports that would allow them to make, communicate and participate in relevant decisions. If the person’s needs could be met and their interests protected if they could access those supports to make the decision themselves, this would be a factor that may lead the ACAT not to appoint a guardian or manager.
Secondly, the bill explicitly requires guardians and managers who are appointed to make decisions on behalf of a person to facilitate a supported decision-making approach in exercising their functions, as far as practicable. This principle recognises that, where a guardian or manager has been appointed to make certain decisions, they will still formally make the decision and the support will focus on enabling the protected person’s participation in the decision-making process.
There are two outcomes that the bill is seeking to achieve. Firstly, we anticipate that, by specifically requiring ACAT to consider supported decision-making, this will focus attention on this alternative approach and may reduce the need to appoint guardians and property managers. Secondly, embedding supported decision-making as a necessary feature of guardianship and property management will mean that people receive more support to participate in decisions that affect their lives and wellbeing.
These supports will look different for every person. Different people will need different levels of support at different points in the decision-making process. Supports can assist a person to understand that they have the right to make decisions, to work out what the decision means, to find and understand information, to reflect on decisions, to consider options and to predict consequences. This is intended to better reflect the dignity and human rights of people subject to or being considered for guardianship and management orders.
The bill recognises that there may still be structural barriers to the recognition of supported decision-making in certain cases where a person has impaired decision-making capacity. For example, financial institutions, private health services and other service providers may require a guardian or manager to formally make decisions regarding consent for medical procedures or significant financial transactions. Because these institutions still, in large part, rely on substitute decision-making as part of their risk management strategies and duty of care
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