In Aotearoa NZ, a person's ability to make legal and important life-related decisions is assessed through the concept of ‘capacity,’ which determines if they can understand, appreciate, and rationally use information to make choices. If a person lacks capacity, they may need support to exercise their legal rights and duties, and another person can be appointed to support their decision-making. Aotearoa New Zealand supports the concept of supported decision-making, where individuals receive assistance to make their own decisions.
• Legal capacity
Legal capacity is something that every person has. It refers to a person's ability to have rights and obligations and to perform acts with legal effect. It's the recognition by law that an individual can make their own decisions, engage in transactions, enter into contracts, bring legal proceedings, make a will, and generally exercise their rights and duties as a person.
• Substituted decision-making
If a person is assessed as lacking the capacity to make decisions, another person can be given the authority to make decisions on their behalf. This is known as substituted decision-making. However, the system in Aotearoa New Zealand is based on the requirement to undertake supported decision-making, so substituted decision-making should be a rarity.
• Supported decision-making
In most cases, a person with impaired capacity is still be able to make decisions with support. The PPPR legislation requires supported decision-making to be practiced by everyone acting in a role under this Act. This is common, and the preferred approach.
• Principles
The PPPR Act states that judges should intervene in a person's life as little as possible. Judges and those appointed to make decisions should encourage the person to make decisions for themselves as much as possible.
‘Capacity’ is decision and time specific, and it can affect people of all ages. Culture, language, and religion are also important factors in how a person makes decisions.
Decision-making capacity affects decision-making in Aotearoa New Zealand law in the following ways:
• Decision-making capacity
The PPPR Act and other laws in New Zealand regulate decision-making capacity. These laws apply to a wide range of adults, including those with dementia, brain injuries, learning disabilities, mental health needs, and other disabilities or health conditions.
• Presumption of capacity
The burden of proof to establish that a person does not have capacity lies with the person who wants to obtain a court order. This means that they must provide medical evidence to the Court that persuades the Judge the subject person lacks capacity. Again, a reminder there is high threshold to be met before the court will intervene.
• Substitute decision-making
If a person is assessed as lacking decision-making capacity, another person can be given the authority to sign off on decisions on their behalf. This is called substituted decision-making. However, decision-making for a person lacking decision-making capacity is still required to undertake supported decision-making, even if they have the legal authority to sign off on the decision.
• Supported decision-making
As indicated with legal capacity above, Family Court Judges are required to promote a supported decision-making approach to help and encourage the person to make decisions for themselves as much as possible.
• Decision-making capacity
When assessing a person's decision-making capacity, a health practitioner will consider medical evidence and statements from family, friends, and health professionals.
The Law Commission has published a capacity assessment tool that practitioners and doctors can use to assess capacity.
Click here to access the Toolkit for Assessing Capacity.
