Ngā Huarahi Whakatau

Te Aka Matua o te Ture | Law Commission is reviewing the law relating to adult decision-making capacity. In October 2021 the Commission published Terms of Reference that will guide this review.

Overview

  • Perspectives from te ao Māori on decision-making capacity and its regulation

    This will include how the law should address any matters of particular concern to tāngata whaikaha Māori, their whānau, hapū and iwi, and Māori more generally.

  • Te Tiriti o Waitangi

    How the law should recognise and provide for te Tiriti o Waitangi | the Treaty of Waitangi.

  • Human rights

    How the law should protect and promote human rights including the consideration of Aotearoa New Zealand’s international human rights commitments and domestic human rights laws.

  • The language used in our laws

  • Assessment of decision-making abilities

    How to assess a person’s ability to make decisions about exercising legal rights and duties.

  • Decision-making support

    How the law should facilitate and regulate the provision of support to people who require it to be able to exercise legal capacity on an equal basis.

  • Role of whānau, hapū and iwi, family, carers and caregivers

    How the law should recognise the role of whānau, hapū and iwi, family, carers and caregivers, and the wider community in the provision of such support.

  • Decision-making on behalf of a person

    How the law should regulate the exercise of legal capacity in rare circumstances where decisions may need to be made on behalf of a person.

  • Safeguards

    What safeguards the law should provide around measures relating to the exercise of legal capacity.

  • Deprivation of liberty

    How the law should regulate situations where people, whose ability to make decisions may be limited, are deprived of their liberty (other than in the context of criminal proceedings).

Terms of Reference

The Terms of Reference will guide this review. Click on the links below to read the Terms of Reference in accessible formats.

Standard format

Easy Read version

If you are using a screen-reader or magnification software we encourage you to use the standard or large print versions of these documents above.

Easy Read documents contain pictures and/or images, which may not be accessible via screen-readers or magnification software.

Large Print, Braille, Audio formats

Blind Citizens NZ is coordinating the availability of Large Print, Braille and Audio copies of the Terms of Reference. You can contact Blind Citizens NZ directly via email: admin@abcnz.org.nz, phone: 04-389-0033 or freephone: 0800-222-694.

NZ Sign Language

Common Questions

Click on the common questions below to find out more about the review.

In this review we use the terms ‘legal capacity’ and ‘decision-making capacity’.

The term ‘legal capacity’ encompasses: ‘legal standing’, the ability to hold rights and duties; and ‘legal agency’, the ability to exercise those rights and duties.

Legal capacity is different from ‘decision-making capacity’.  ‘Decision-making capacity’ refers to the abilities considered necessary to exercise legal rights and duties. The terms ‘mental capacity’ or ‘competence’ are also sometimes used in discussing this area instead of ‘decision-making capacity’.

Under the current law in Aotearoa New Zealand if a person is assessed to lack decision-making capacity (wholly or partly depending on the legal test) their exercise of legal capacity may be limited. For example, someone can be appointed, such as a welfare guardian, a property manager or an attorney appointed under an enduring power of attorney, to make decisions on behalf of the person.

The concept of capacity is expressed in te reo Māori in the Māori name for the project: Ngā Huarahi Whakatau. The full name for the project is: He Arotake i te Ture mō ngā Huarahi Whakatau a ngā Pakeke | Review of Adult Decision-Making Capacity Law.

Te Aka Matua o te Ture | Law Commission is an independent, publicly funded agency that provides law reform advice to the Government.

This makes it different from other state sector agencies. The Government does not direct how we carry out our work or the recommendations we make.

We approach each law reform task with an open mind, undertake engagement and consultation, and consider the broader policy context.

We then make recommendations to Government to improve the law. These recommendations are published in a report to the Minister of Justice.

The Minister must present our report to Parliament. The Government decides whether and how it will change the law.

Click here to read more about the Law Commission.

There have been significant developments since the central law relating to adult decision-making capacity was passed, including Aotearoa New Zealand’s commitment to the UN Convention on the Rights of Persons with Disabilities. In light of these developments, the Minister of Justice has asked Te Aka Matua o te Ture | Law Commission to review the law relating to adult decision-making capacity and make recommendations to improve the law.

The scope of the Law Commission’s review is set out in our Terms of Reference.

Click here to read the Terms of Reference – available in accessible formats.

Te Aka Matua o te Ture | Law Commission is committed to consulting the public on our review.

There will be a public consultation process for the review in 2022.

We also acknowledge that the United Nations Convention on the Rights of Persons with Disabilities requires that disabled people are involved in the development of legislation and policies on issues relating to disabled people.

We will work with disabled people and tāngata whaikaha Māori, and their representative organisations, to facilitate accessible consultation processes and maximise the participation of those most affected by the laws relating to adult decision-making capacity.

You can subscribe to receive updates on this review, including opportunities to be involved.

Click here to subscribe for updates.

Te Aka Matua o te Ture | Law Commission launched this review with the publication of its Terms of Reference in October 2021.

We intend to report to the Minister of Justice by the end of 2023.

It is then up to the Government to decide whether and how it will change the law.

Subscribe for updates

You can subscribe to receive updates on this review, including opportunities to be involved.

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    Contact us:

    We can also be contacted in the following ways:

    Email: huarahi.whakatau@lawcom.govt.nz

    Post: Law Commission, PO Box 2590, Wellington 6140

    Toll-free phone: 0800 832 526

    If you wish to report an accessibility issue, have any questions or need assistance, please contact us via email huarahi.whakatau@lawcom.govt.nz

    What happens to your contact details? Please read the Law Commission’s Privacy and Transparency Statement.