Te Aka Matua o te Ture | Law Commission is reviewing how the law should respond when adults’ decision-making is affected. We are consulting on our Preliminary Issues Paper. We would like to hear from you.
There are many things that can affect a person’s decision-making. These can include dementia, acquired brain injuries, learning disabilities and experiences of mental distress.
If an adult’s decision-making is affected, the law may treat their decisions differently. This is based on a concept of ‘decision-making capacity’. If a person is assessed not to have ‘decision-making capacity’, their decision might not have legal effect. Another person might be appointed to make the decision for them.
Many people think the law in this area needs to be reviewed to make sure it works well for people with affected decision-making and for those around them.
The Minister of Justice has asked the Te Aka Matua o te Ture | Law Commission to carry out a review and make recommendations to improve the law.
The full scope of our review is set out in our Terms of Reference
Many people think the law should reflect a ‘social model’ of disability, which focuses on identifying and removing social and physical barriers that stop disabled people from being fully included.
In recent decades, there has been greater recognition of the significance of te Tiriti, te ao Māori and tikanga Māori for law reform.
In recent decades, human rights have become more protected. In 2008, Aotearoa New Zealand ratified the United Nations Convention on the Rights of Persons with Disabilities.
Aotearoa New Zealand continues to become more diverse. It is important that the law reflects the perspectives of people from different cultural backgrounds. Also, New Zealanders are living longer and the law needs to work for the increasing numbers of people who may experience affected decision-making.
Most current law treats people as either having or not having ‘decision-making capacity’. In practice, decision-making may be more affected at some times than others, or more affected for some decisions than others. This can also change over time.
There are practical issues with our current laws that need fixing.
In this review, we are considering how the law should respond when adults’ decision-making is affected.
We want to learn about your experience with current law and practice and what you think about the big issues and principles. This paper does not consider the details of the current law or cover every area of law or issue.
The feedback we receive on the Preliminary Issues Paper will help us develop options to improve the law.
You can sign up for a webinar to learn more about this Preliminary Issues Paper and consultation.
Click on the links below to read the Preliminary Issues Paper or a shorter Summary. The Summary is provided in te reo Māori and in a number of accessible formats.
Watch Our Video
Each webinar will provide a short overview of the review and the consultation, answer some common questions, and provide information about how you can have your say.
The webinars will not be interactive and we will not be able to respond to questions during the session. You can send us general questions in advance by filling in the form below. We will use these questions to decide what to cover in the webinars.
Please be aware that our role is to make recommendations about law reform. We are unable to answer questions about personal circumstances, give legal advice or respond to legal complaints. If you need legal advice please contact your local community law centre, use the Law Society’s online Find a Lawyer service, or contact the Lawyers Complaints Service at 0800 261 801.
The webinars will be held on:
You can sign up for a webinar by filling in the form below.
The online survey contains information and consultation questions from our Summary of the Preliminary Issues Paper.
The online survey does not contain the Parts of the Summary that have no questions. This means it starts at Part 2 and then goes to Part 5, skipping Parts 3 and 4. You might find it helpful to read these other Parts before beginning the survey. If so, you can click on the links below:
If you want to see our full analysis you can read the Preliminary Issues Paper at any time.
Click the button below to start the survey. Remember to click ‘Save your answers’ when you complete each part. You can go back and edit your answers by clicking a topic link on the right-hand side. You can answer one, some, or all of the questions.
At the end of the survey, we will ask for some information about you, including your email address. You do not have to provide this information, although it is helpful to us if you do. You will also be able to review all your answers at the end of the survey before you click “Submit”.
If you would like to make a submission, but none of these options are accessible to you, please get in touch with us.
Some people may find it emotional or distressing to make a submission. If you want to make a submission, you may want to arrange to have a support person who is aware of your submission and be ready to help you if difficulties arise. If you need support, you can call or text 1737. This helpline service is free and is available 24 hours a day. You’ll get to talk or text with a trained counsellor.
Law Commission may be required to release your submission in response to a request under the Official Information Act 1982. Please read our privacy policy – how we use your information and what happens to your submission.
This consultation closes at 5pm on Friday 3 March 2023.
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 many 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 research and engagement, 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.
There has been increased recognition of the human rights of people with disabilities and a shift towards supporting people to make their own decisions. There has also been increased recognition that the law in this area does not adequately take into account te Tiriti o Waitangi, or te ao Māori and the multi-cultural nature of Aotearoa New Zealand. As well, our population is changing. Aotearoa New Zealand is an increasingly aging and culturally diverse population. In light of these developments, the Minister of Justice has asked the Te Aka Matua o te Ture | Law Commission to carry out a review and make recommendations to improve the law.
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’ is a threshold used in the current law in Aotearoa New Zealand. Under the current law, 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.
We would like to hear from you in our current consultation. You can make a submission or contact us by [clicking here to go to our online survey – link to ‘Have your say’ section.]
We acknowledge that the UN 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 are working 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.
We will have a second round of consultation in 2023. This will be supported by a longer consultation document that will address the current law in more detail and propose some options for reform.
After our second round of consultation, we will prepare our final report. This will recommend to the government how the law should be reformed in this area. We intend to provide our final report to the Minister of Justice by 30 June 2024.
You can subscribe to receive updates on this review, including opportunities to be involved.
Information given to the Law Commission is subject to the Official Information Act 1982 and the Privacy Act 2020.
For more information about the Ombudsman and the Official Information Act, please click here to go to the Ombudsman’s website. For more information about the Privacy Act, please click here to go to the Privacy Commissioner’s website.
If you send us a submission, we will consider the submission in our review and keep the submission as part of our official records. We may publish the submission on our website, refer to the submission in our publications and use the submission to inform our work in other reviews.
Your submission may contain personal information. You have the right to access and correct your personal information at any time. You can request that we do not publish your name or any other identifying information in your submission. If you request this, we will not publish your name or any other information that we think might identify you or others on our website or in our publications.
If we receive a request under the Official Information Act that includes your submission, we must consider releasing it. If the request includes your personal information, we will consult with you.
If you have questions about the way we manage your submission, you are welcome to contact the Law Commission’s General Manager.
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What happens to your contact details? Please read the Law Commission’s Privacy and Transparency Statement.
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