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What safeguards and accountability mechanisms might be needed?

Much of the time, decision-making arrangements for a person with affected decision-making work well and there are no issues. However, sometimes things can go wrong.  We are thinking about what safeguards and accountability mechanisms might be needed. This means what the law should do to keep people with affected decision-making and their supporters safe from harm and to hold people accountable for doing what they are supposed to. 

To help think about when safeguards and accountability mechanisms might be needed if things go wrong, we have used some examples below. 

The role of decision-making supporters 

Hēmi has a learning disability and his mum supports him to make decisions. Hēmi’s mum controls his money and how he spends it. Hēmi wants to make more choices about how he spends his money, but his mum is worried that he will not make ‘responsible’ decisions.

Hēmi’s mum is supporting him informally, so there are no legal arrangements in place. This means that there are no formal safeguards and accountability mechanisms to manage difficult situations, such as when a person with affected decision-making wants to do something and their supporter disagrees.   

Enduring powers of attorney and elder abuse 

Priya has dementia and her son, Sam, is her attorney under an enduring power of attorney. Sam is not properly looking after Priya and is spending her money on himself. Priya’s other children are concerned that Priya is experiencing elder abuse.  

Some safeguards and accountability mechanisms for enduring powers of attorney already exist in law, such as requirements to keep financial records. We have heard that they might not always work well, or apply in every situation. 

Moving to a rest home or care facility 

Linda is in her 80s and her family are worried she is not able to look after herself at home. They do not have legal powers to make decisions for Linda, but they arrange for her to move into a secure rest home. She does not strongly say no to the move, but she does not agree either.   

Once Linda is living in the secure rest home, she is effectively ‘detained’. This means that she cannot choose to leave. There are no specific legal processes for Linda’s move to long-term residential care or to make sure her detention is monitored.   

Welfare guardian making decisions which might cause harm 

Deborah has experienced a traumatic brain injury, and her aunt Lucy has been appointed as her welfare guardian to make decisions for her. Deborah gets sick and the doctors think she should take medication, but Lucy does not want to follow that medical advice. Deborah becomes more unwell. 

There are existing safeguards and accountability mechanisms for welfare guardians and other people who are appointed by a court to make decisions for another person, such as requirements for appointments to be reviewed. We have heard that they might not always work well, or apply in every situation, like when a welfare guardian makes decisions that might cause harm. 

Supporting people who provide support 

Alex is supporting their elderly father to make decisions. Alex is doing their best to help but finds this role difficult. Alex’s siblings say that Alex is doing a bad job. Alex also has their own experiences of mental distress, and they are struggling to cope.  

We have heard that the safety and wellbeing of decision-making supporters is important, both for the supporter, and for the person being supported. We have heard that there is not always enough support to keep supporters safe and well. 

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