The legal options discussed in this resource are based on a person’s human and disability rights as set out in international conventions and national legislation like the Bill of Rights, and the current national laws relating to both child, adult, and disability decision-making.

However, it is important to note that the law relating to adult decision-making capacity is currently being reviewed by the Law Commission. They are due to report back to the Government with recommendations for changes at the end of the 2025 calendar year. 

The Law Commission's proposals are intended to help ensure Aotearoa New Zealand complies with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The Law Commission is focused on making recommendations for reforms in areas such as disability law, aiming to better protect the rights of people with disabilities and align New Zealand’s legal framework with the principles and obligations outlined in the UNCRPD. For this reason, the review particularly focuses on the Protection of Personal and Property Rights Act 1988 (PPPR Act). It is our intention to update this resource from an FASD perspective once any new legislation is passed into law.

Indications from the Law Commission at the time of writing this resource (May 2025) is that their key proposals and areas of focus will be:

1. Clarifying Decision-Making Capacity: The Law Commission aims to define decision-making capacity more clearly. This would involve making distinctions between people who can make decisions for themselves and those who require support. It also looks at the need for a test of capacity that better reflects the realities of modern life, particularly for individuals with conditions such as dementia, intellectual disabilities, or mental health issues.
   
   
2. Supported Decision-Making: The Law Commission is proposing to enhance the concept of supported decision-making, which allows individuals with impaired decision-making ability to make decisions with assistance from trusted support networks. This contrasts with the current approach, which can sometimes lead to full guardianship.
   
   
3. Guardianship and the Role of the Court: There is a focus on reviewing the role of guardianship orders. The proposal suggests making the process more person-centred, with an emphasis on less restrictive measures and support for individual autonomy.
   
   
4. Reviewing the Appointment of Enduring Powers of Attorney (EPA): The Law Commission is considering whether the current framework for Enduring Powers of Attorney needs reform, particularly around the safeguards to prevent abuse or misuse of power by appointed attorneys.
   
   
5. Reform of the Mental Health Act: In light of increasing awareness of mental health issues, the Law Commission is also exploring changes to the Mental Health Act to better integrate with the decision-making capacity framework, ensuring that people with mental health conditions are supported in making their own decisions where possible.
   
   
6. Capacity and Specific Legal Transactions: The review also addresses how capacity should be assessed for specific legal transactions, such as financial contracts, healthcare decisions, and living wills.
   
   
7. Ensuring Adequate Safeguards and Preventing Abuse: One of the goals is to ensure that any changes include adequate safeguards to prevent abuse of vulnerable adults while still supporting their autonomy and dignity.
   
   
8. Enhancing the role of Family: One of the key areas of focus is ensuring that family members have a more active role in decision-making processes for their loved ones. This includes considerations around the rights of family members to be more involved in decisions about care, medical treatment, and other critical life choices for adults who may struggle with making those decisions independently. The Commission has acknowledged the need to balance the rights of the individual with the involvement of family members to ensure that the decision-making process is both respectful of the individual’s autonomy and provides necessary protections.
   
   
9. 'Best Interests' to 'Rights, will and preferences': An important proposal by the Law Commission is replace the current term in the PPPR Act of 'best interests' (which is subject to interpretation by a third party) to use the more person-centred approach where decisions are made based on the person’s 'rights, will and preferences' to the greatest extent possible.  The term 'rights, will and preferences' reflects the idea that all individuals have the ability to express their wishes and preferences, and that these should be respected even if the person lacks capacity to make a formal decision. 

In essence, the Law Commission's proposal aims to move away from a more paternalistic approach where decisions are made on behalf of a person to a more person-centred approach where the person's wishes and preferences are prioritised, even if they require support to express them. 

The background here regarding the proposed changes to adult decision-making capacity law is provided so that users of this resource are aware that the intention of any law change in this area is to empower disabled people to be as involved in decisions affecting their lives as much as possible, while still having safeguards in place to prevent the abuse of vulnerable adults. This approach is reflected in the resources provided.

However, we at FASD-CAN are also well aware from the lived experience of the many possible adverse effects and life-long consequences of unsupported decision-making by people with FASD. It is finding a balance that works for each individual and their family and whānau that is important.