This is a tricky one for people with FASD for several reasons that include:

• They are often seen as generally capable individuals who can express their wishes well.
• The lived experience of memory challenges, confabulation, being able to ‘talk the talk’ but not ‘walk the talk’, their tendency to change their wishes on a whim, their inconsistency in performance, their inability to understand cause and effect or learn from consequences, their lack of good judgement, dysmaturity – all those many executive and adaptive functioning challenges we know so well, are usually not seen as issues that affect their decision-making capacity.
• Courts are loathe to talk away a person’s rights to self-determination except in exceptional circumstances.
• Our knowledge of the ‘trouble’ they can get into in their lives, their capacity to manage money and issues with accumulation of debt are generally not seen as relevant to their decision-making capacity.

On the other hand, while acknowledging people with FASD have many challenges and they are slower to mature than their peers, they are amazingly resilient individuals with a huge capacity to continue to learn, and developmentally grow over time. So what might be beneficial or necessary to protect their best interests now, might not be needed in the future, and vice versa.

The Court’s approach in these matters in therefore understandable, but it does not alleviate parent, caregiver and whānau / family lived experience concerns around the decisions made and their failure to learn from the past.

All this information taken together indicates it is unlikely the Family Court will agree to restrict your FASD person’s decision-making rights about their lives, except in exceptional circumstances.

The Family Court will only intervene if it believes that the person's safety is at risk and that the appointment of a Welfare Guardian is necessary. The Court will also consider the principle of least restrictive intervention, meaning that the person should be able to exercise their capacity to the greatest extent possible.

We therefore recommend engaging with your FASD person in supported decision-making as much as possible, and seek their consent to take on some of the roles discussed later in this resource.

RECOMMENDATION: The process of establishing lack of capacity is a complex area of law and is best handled by a specialist disability lawyer. FASD-CAN recommends seeking their advice if you wish to pursue this option.