decisions. decisions.

Transcription

1 decisions, decisions, has been has rejected been rejected in law. in It is law. inappropriate It is inappropria state that state a person that a person lacks capacity lacks capacity without without furr furr reference reference type type capacity capacity task. A task. person s A person s capacity capacity can vary can in vary different in different circumstances, circumstances, at different at diffe times, and times, even and within even domains within domains for different for different types types o decisions. decisions. AUSTRALIAN AUSTRALIAN CENTRE CENTRE for CAPACITY for CAPACITY cannot cannot be extrapolated be extrapolated from one from decision one decis and ETHICS and and ETHICS PREVENTION and PREVENTION EXPLOITATION EXPLOITATION PEOPLE WITH PEOPLE DISABILITIES WITH DISABILITIES anor. anor. For example, For example, a person s a person s capacity capacity consent consent medical medical cannot cannot be inferred be inferred from fro ir capacity ir capacity make a make decision a decision : : dementia execute execute a power a power atrney; atrney; A guide A for for guide South NSW for Australian Health NSW Care, Health Health Ageing Care, Care Ageing and Pressionals: Community and Community write a write will, a will, workers: Mini-legal workers: Mini-legal kit Mini-legal Series kit Series 1.6 kit 1.3 Series 1.3 enter a enter contract a contract or deed; or or deed; or appoint appoint an enduring an enduring guardian. guardian. Within Within each domain each domain re is re a spectrum is a spectrum or or hierarchy hierarchy decisions. decisions. People People may be may capable be capable making making simple simple decisions decisions (e.g. having (e.g. having a blood a test) blood but test) b not more not complex more complex ones (e.g. ones amputation). (e.g. amputation). is is situation-specific. The greater The greater complexity complexity and/or and/or conflict conflict within within decision-maker s environment, environment, higher higher level level cognitive cognitive function functio or is: is: emotional emotional stability/mental stability/mental health necessary health necessary in order in order ability ability make and make communicate and communicate a decision; a decision; be considered be considered capable. capable. See Figure See Figure below 1 below 1 not a unitary not a unitary or global or concept; global concept; domain domain specific: specific: particular particular type type decision decision being made being (personal, made (personal, health, health, financial); financial); and and decision decision or task or specific: task specific: different different for every for every decision decision made, even made within even one within domain. one domain. Under Under common common law, and law, consistent and consistent with Article with Article UN Convention UN Convention on Rights Rights Persons Persons with Disabilities, with Disabilities, a person a person is always is always presumed presumed have capacity have capacity make decisions. make decisions. Where Where a person a person has has dementia dementia this may this be may a trigger be a trigger for a capacity for a capacity if a decision if a decision needs needs be made. be Broadly, made. Broadly, re are re three are three areas or areas domains or domains decision-making: decision-making: personal, personal, financial financial and health. and health. Within se Within domains se domains re are re numerous are numerous types types capacity capacity decisions decisions or capacity or capacity tasks. tasks. is decision-specific. Global Global capacity, capacity, where where a person a person is eir is capable eir capable or incapable or incapable making making all all

2 For example, weighing up multiple potential 1. To facilitate decisions, future has been planning rejected a in person law. It may is inappropria be appointees as atrneys or guardians by a person with encouraged state that, a person for example: lacks capacity without furr severe dementia in face family conflict may be reference appoint an enduring type guardian; capacity or task. A person s difficult; while appointment one s spouse in an capacity make a medical can vary power in different atrney; circumstances, at diffe uncomplicated relationship may be possible for times, make and anticipary even within direction; domains for different types o someone with mild moderate dementia. decisions. make an advance care directive under Dementia is a degenerative AUSTRALIAN condition CENTRE associated for CAPACITY with common law. cannot be extrapolated from one decis and ETHICS and PREVENTION an inevitable decline in decision-making ability over 2. As part a routine clinical care - it EXPLOITATION PEOPLE WITH DISABILITIES anor. For example, a person s capacity time. Each decision or capacity task is different in may consent be necessary medical ensure that cannot a person be has inferred fro complexity; consequently it will be lost at different points capacity ir capacity consent make medical a decision : or drive. trajecry illness. 3. Concerns from ors regarding a person s dementia execute a power atrney; decision-making ability - concerns may have been People should A guide be for encouraged NSW Health Care, make Ageing decisions and Community write a will, raised by a lawyer, family member, carer or y are capable making workers: as Mini-legal soon as kit possible. Series 1.3 Early enter a contract or deed; or service provider, and an requested. planning with regards appointments substitute appoint an enduring guardian. decision makers will maximise personal control over Assess person s ability make a decision, not Within each domain re is a spectrum or decisions, as will promoting supported decision making wher decision is wise. A person has a hierarchy decisions. People may be capable for those no longer able make ir own decisions fundamental human right self-determination, and making simple decisions (e.g. having a blood test) b independently. ASKME 2 is a practical model where y have capacity, dignity risk - right not more complex ones (e.g. amputation). supported decision making: take risks. Consider person s religious or cultural 1. Assess strengths and deficits; beliefs or or views is situation-specific. when assessing capacity. The greater 2. Simplify task; Any complexity and/or capacity conflict must within include a: decision-maker 3. Know person; 1. global environment, higher person s level mental cognitive state and functio is: 4. Maximise ability understand; and cognitive emotional function stability/mental (ideally with health estimate necessary severity in order ability make and communicate a decision; 5. Enable participation. and be considered capable. specific See executive/frontal Figure below 1 not a unitary or global concept; functions judgment, reasoning and planning Definition domain specific: mental particular incapacity type decision being made (personal, health, financial); and which are relevant decision making; and In SA, mental incapacity means: 2. a functional decision-making, i.e. decision or task specific: different for every inability a person look after ir own wher person can show, using ir own decision made even within one domain. health, safety or welfare or manage ir own words, an understanding decision as defined affairs, by relevant legal test for capacity (see below) in Under common law, and consistent with Article as a result damage, illness, disorder, imperfect domain in which y are making a decision (not 12 UN Convention on Rights Persons or delayed development, impairment or just yes, I understand ). with Disabilities, a person is always presumed deterioration, have capacity ir make brain or decisions. mind Where a person has Relevant legal tests or dementia any physical this illness may be or a condition trigger for that a capacity renders 1. Assessment facilitate future planning m if a unable decision needs communicate be made. ir Broadly, intentions re or are three wishes. areas or domains decision-making: personal, financial Enduring Guardianship (EG) - health and personal and health. Within se domains re are numerous decisions types How and capacity when decisions assess or capacity tasks. An EG is a document in which a person appoints a Health care pressionals is decision-specific. may be asked Global assess capacity, where guardian make certain personal and/or health capacity a person in response is eir certain capable triggers: or incapable making all decisions on ir behalf after y lose capacity do so mselves. See section 25 and Schedule

3 Guardianship and Administration Act 1983 (SA). When decisions, Has all has relevant been information rejected law. been It given is inappropria a person lacks capacity, decisions must be made in state person that a in person a way lacks y can capacity understand? without furr accordance with any directions contained in EG. reference Are y making type appointment capacity task. freely A person s and Personal decisions may include accommodation capacity voluntarily can and vary not in being different unduly circumstances, influenced or at diffe decisions, lifestyle decisions, and decisions about times, schooled? and even within domains for different types o access persons. Health decisions involve granting decisions. or refusal consent medical and dental Advance Care Planning medical / dental decisions AUSTRALIAN CENTRE for CAPACITY cannot be extrapolated from one decis proposed for person. and ETHICS and PREVENTION Advance care planning (see below) is a process for EXPLOITATION PEOPLE WITH DISABILITIES anor. For example, a person s capacity However, if person has already appointed anor making consent and writing medical down future health care wishes in individual as medical agent under a medical power advance. This can include: 3 cannot be inferred fro ir capacity make a decision : atrney (see below) and agent is available and (a) Appointing an Enduring Guardian (see above) dementia execute a power atrney; willing act, that medical agent is legal decisionmaker for medical and dental decisions when Power Atrney (MPOA): An MPOA allows a person (b) Appointing a Medical Agent under a Medical A guide for NSW Health Care, Ageing and Community write a will, workers: Mini-legal kit Series 1.3 enter a contract or deed; or person lacks capacity make m. appoint anor person (agent) make medical appoint an enduring guardian. decisions on ir behalf when y are In assessing capacity appoint an EG, consider: unable Within make each ir domain own decisions re is about a spectrum medical or 1. The what appointment:. hierarchy It operates decisions. when person People loses may be capacity. capable Does person understand that if y lack The appointer making must simple understand decisions that (e.g. having agent s a blood power test) b mental capacity about any matters relating applies not only more medical complex ones (e.g. decisions, amputation). not ir person or circumstances, ir appointed including refusing natural provision or guardian may exercise powers specified in administration is food situation-specific. and water, administration The greater EG. This usually means making decisions on ir drugs complexity relieve pain and/or or distress conflict or within medical decision-maker behalf about accommodation, health care, that would environment, result in person higher regaining level capacity cognitive functio is: personal services, and medical ; make ir emotional own decisions. stability/mental See section health 8 necessary Consent in order ability make and communicate a decision; 2. The who appointment: Medical be Treatment considered and capable. Palliative See Care Figure Act below 1995 (SA.) 1 not a unitary or global concept; What is rationale for appointing a particular domain specific: particular type decision Note that an EG has more powers a guardian person as enduring guardian; e.g. has person being made (personal, health, financial); and than a medical agent. appointed any enduring guardians previously? If (c) Making an anticipary direction: A person, while decision or task specific: different for every so, how frequently have sound mind, may give an anticipary direction that, if decision made even within one domain. re been changes (i.e. at some future time y are in terminal phase a revocations and new terminal illness or in a persistent vegetative state and appointments?) Under common Is this law, and consistent with Article are incapable making decisions about ir own appointment 12 UN in Convention keeping on Rights Persons medical, y are be taken have with with previous Disabilities, a person is always presumed consented medical that is in accordance appointments; have capacity e.g. has make decisions. Where a person with has ir wishes as expressed in direction and someone dementia else this been may be a trigger for a capacity have refused medical that is contrary those consistently if a decision appointed needs be made. Broadly, re are three expressed wishes. They must not have revoked as areas enduring or domains guardian decision-making: in past? What personal, is financial direction, See section 8 Consent Medical Treatment hisry and health. Within relationship se between domains re person are numerous and and Palliative Care Act 1995 (SA.) Such anticipary types appointee capacity and decisions has re or been capacity any radical tasks. directions are binding on person s treating docrs. change in that is decision-specific. relationship coinciding Global with capacity, where (d) Making an advance care directive (ACD): An EG onset a person or course is eir dementia? capable or incapable making all with directions about how medical decisions 3. The freedom appointment:

4 are be made is similar an ACD because Do decisions, y understand has been that rejected EPOA in law. can It is be inappropria directions are binding. Although, Guardianship revoked state that a any person time if lacks y have capacity capacity? without furr Board SA may order orwise. Also anticipary 2. The reference who appointment: type capacity task. A person s directions are binding. These directions limit scope Why capacity has can atrney vary in different been selected circumstances, for at diffe operation ACDs (see above), but do not prevent appointment? times, and even Has within person domains made for any different EPOA s types o binding ACDs with broader directions from being made previously? decisions. If so, how frequently have re been under common law in SA (see below Advance AUSTRALIAN CENTRE for CAPACITY changes, i.e. cannot revocations be extrapolated and new appointments? from one decis Care Planning). and ETHICS and PREVENTION Is this appointment in keeping with previous EXPLOITATION PEOPLE WITH DISABILITIES anor. For example, a person s capacity Enduring Powers Atrney Financial decisions appointments; consent medical e.g. has someone cannot else been be inferred fro consistently ir capacity appointed make as a decision atrney : in past? In SA, enduring powers atrney (EPOA) are made What is hisry relationship between under Powers Atrney and Agency dementia execute a power atrney; Act 1984 person and atrney and has re been any (SA). An A EPOA guide allows for NSW a person Health (principal Care, Ageing or donor) and Community write a will, radical change in that relationship coinciding with appoint anor person workers: (atrney) Mini-legal make kit Series financial 1.3 onset enter or course a contract dementia? or deed; or decisions for m. An EPOA can be written so that 3. The freedom appoint an appointment: enduring guardian. atrney can act while a principal has capacity and Has Within all each relevant domain information re is been a spectrum given or continues act if y lose capacity manage ir person hierarchy in a way decisions. y can understand? People may be capable financial affairs. Or, it can be written commence only Is making person simple making decisions appointment (e.g. having freely a blood and test) b when person has lost capacity. voluntarily, not more complex not being ones unduly (e.g. influenced amputation). or A person must understand schooled make appointment? nature and effect EPOA The principles for is situation-specific. capacity The greater make an y are making for it be EPOA apply complexity equally and/or conflict within capacity decision-maker effective legally. When revoke. environment, The who higher applies level particularly cognitive functio is: in assessing for capacity regards emotional revocation. stability/mental It is important health ask necessary why in order ability make and communicate a decision; an EPOA, consider: principal be now considered feels that capable. atrney See Figure is inappropriate, below 1 not a unitary or global concept; as 1. The what domain specific: particular type decision unfounded paranoid ideation and suspiciousness may appointment: underlie such changes in case dementia. being made (personal, health, financial); and Does decision person or task specific: different for every 2. Assessment as Part Routine Care health and understand decision y made are even within one domain. personal decisions authorising someone look after and assume complete authority ir financial affairs? Do The capacity drive Under common law, and consistent with Article y understand sort things atrney can A diagnosis dementia should be viewed as a warning 12 UN Convention on Rights Persons do without furr reference m? Do y sign that an individual may not be competent drive, or with Disabilities, a person is always presumed understand atrney can do anything with will lose that competency at some stage in future. have capacity make decisions. Where a person has property/money which y mselves can do? However, a diagnosis does not determine individual dementia this may be a trigger for a capacity Do y understand that y may specify ability drive. There should be a routine review if a decision needs be made. Broadly, re are three instructions, conditions or limitations regarding person s ability drive safely. 4 areas or domains decision-making: personal, financial exercise and health. Within power? se domains re are numerous Medical consent Do types y understand capacity decisions that EPOA or capacity will begin, tasks. or In SA, a person who, by reason ir mental continue when y are incapable managing incapacity as defined above, is deemed incapable is decision-specific. Global capacity, where ir financial affairs, and at that time, y will be giving a valid consent ir own medical or dental a person is eir capable or incapable making all unable oversee use power?

5 . When assessing capacity consent exclude decisions, person has from been saying rejected what in y law. want It is inappropria or don t consider: want for state mselves that a person in a Plan lacks Care. capacity without furr 1. The what consent: reference type capacity task. A person s A Plan Care is a consensus based document based Does person understand general nature capacity can vary in different circumstances, at diffe on a conversation between health pressionals, and effect proposed : times, and even within domains for different types o person (where possible), appropriate person, and what it is and what it involves; decisions. family/carers around best interests and substituted risks and benefits ; and AUSTRALIAN CENTRE for CAPACITY judgment (i.e. an cannot estimation be extrapolated what person from would one decis alternatives, and or ETHICS consequences and PREVENTION not want). 6 having, EXPLOITATION ; PEOPLE WITH DISABILITIES Although anor. For patient example, may a no person s longer have capacity capacity, consent ir wishes; medical preferences; values cannot and be inferred beliefs fro Can person indicate ir consent? about future ir capacity decisions, make a decision including : end- life 2. The freedom consent: dementia, should execute still be a power heard and atrney; taken in Has all relevant information been given consideration. This will ensure medical, nursing and person A guide in a for way NSW y Health can understand? Care, Ageing and Community write a will, workers: Mini-legal kit Series 1.3 or health pressionals enter a contract know or what deed; type or Are y making decision freely and voluntarily provide if appoint person s an condition enduring worsens. guardian. It also and not being pressured or coerced? helps all parties work ger with a common A person has a right refuse. understanding. Within each However, domain it is re still necessary is a spectrum for or If a person lacks capacity make a medical or dental treating hierarchy docr discuss decisions. individual People may be decisions capable decision, has not made a relevant anticipary as y making arise and simple obtain decisions consent (e.g. having proposed a blood test) b direction or an ACD, and is not not from more complex appropriate ones (e.g. person. amputation). emergency medical or a prescribed, A Plan Care is is not situation-specific. a substitute form The consent. greater It is a n a treating docr must make reasonable efforts guide complexity what, and/or best conflict carer/family s within decision-maker find appropriate authority 5 act as substitute knowledge, environment, patient would higher have level wanted cognitive (i.e. functio decision-maker in relation is: proposed, or substituted emotional judgment ) stability/mental had y health been able necessary speak in for order seek consent from ability Guardianship make and communicate Board. The a decision; mselves. be considered It also encourages capable. See person Figure below participate 1 definition not a appropriate unitary or global authority concept; and in some way, e.g. provide assent (agreement, rar categorisation domain medical specific: and particular dental s type in decision than informed consent) decisions, maximise relation wher being made substitute (personal, consent health, is required, financial); and and patient aunomy. who should decision give it, is or set task out specific: in Appendix. different for every decision made even within one domain. While an ACD made by a person with capacity must be Plans Care in later stages honoured if relevant person s current If person does not have Under common law, and consistent with Article circumstances, it is preferable that process an: 12 UN Convention on Rights Persons advance care planning not be based on a static agent with under Disabilities, an MPOA; a person is always presumed document, but on a more dynamic practice that EG relating have capacity medical make decisions. Where a person supports has patients and ir substitute decision-makers decisions; dementia this may be a trigger for a capacity think ahead and formulate goals care as y anticipary if a decision direction; needs or be made. Broadly, re are three confront challenge a progressive illness ACD, areas under or domains decision-making: personal, financial trajecry. common and health. law which Within se domains re are numerous covers situation; and Such a practice should start early, be reassessed types capacity decisions or capacity tasks. regularly with changes in health, and be sensitive y no longer have patient s idea about ir aunomy do y want capacity, this should is decision-specific. not Global capacity, where a person is eir capable or incapable making all know about and be involved in decision-making or

6 would y rar trust ors make decisions, Is re a working has been alternative rejected in or law. informal It is inappropria decisions on ir behalf? 7 state arrangement that a person already lacks in place; capacity e.g. family without furr reference member looking type after ir capacity affairs, task. a power A person s 3. Assessment prompted by concerns from ors capacity atrney, can accountant? vary in different circumstances, at diffe times, Are y and vulnerable even within financial domains abuse? for different Will y types o Manage Estate Financial decisions decisions. be disadvantaged in conduct ir financial Or people s concerns about a person s decisionmaking in relation AUSTRALIAN ir estate CENTRE may trigger for CAPACITY a health cannot be extrapolated from one decis affairs if y do not have someone? Is re a and ETHICS and PREVENTION risk ir assets will be dissipated due ir pressional s. EXPLOITATION This PEOPLE WITH DISABILITIES guides anor. For example, a person s capacity lack capacity? ors decisions about wher y need begin consent medical cannot be inferred fro Can y afford food? Do y pay crucial bills using an EPOA, or where re is no EPOA, apply ir capacity make a decision : such as rent, electricity, water, rates or a crucial Guardianship Board for an administration dementia order accommodation execute a bond? power atrney; under Guardianship and Administration Act 1993 A guide for NSW Health Care, Ageing and Community If person write cannot a will, manage all ir estate, (SA) or Supreme workers: Court Mini-legal or District kit Court Series under 1.3 consider wher enter a re contract are or parts deed; ir or finances Aged and Infirm Persons Property Act 1940 (SA). that y can appoint manage. enduring guardian. In assessing person s capacity manage ir If application estate where an application for an administration order Within each were domain made re eir is a spectrum Supreme or Court or is made Guardianship Board, consider: hierarchy District Court, decisions. capacity People assessor may be capable has consider Does person have mental incapacity? making wher simple person decisions is, (e.g. because having age, a blood test) b disease, Does ir mental incapacity mean y are unable not illness, more complex or physical ones or mental (e.g. amputation). infirmity: unable, wholly or partially, manage ir affairs; manage ir financial affairs? subject, or is liable situation-specific. be subjected The, undue greater What is ability person undertake influence complexity in respect and/or conflict ir estate, within or decision-maker financial tasks: disposing environment, it, or higher level cognitive functio Does person is: know ir assets? Can y orwise emotional in a stability/mental position in which health in necessary opinion in order read a bank ability statement? make and Can communicate y use a a decision; court be renders considered it necessary capable. in See Figure interest below that 1 chequebook not a unitary or ATM or global card? concept; Can y identify person or those dependent upon m that ir currency domain and specific: its relative particular value? Do y type decision property should be protected by a protection order understand being made what (personal, bills y have health, and financial); any debts and over all or part estate. y decision have? Have or task y specific: planned different for for future? every Are decision y vulnerable made even abuse within or one fraud? domain. Guardianship Personal decisions The person does not have manage financial tasks in best possible way, but y must be able A person may need a guardian appointed by Under common law, and consistent with Article manage m. Guardianship Board where y have a mental 12 UN Convention on Rights Persons incapacity which render m unable look after ir If with person Disabilities, lacks capacity a person manage is always ir presumed estate, own health safety, welfare or manage ir own nonfinancial affairs. In assessing need for a consider: have capacity make decisions. Where a person has dementia Do y need this may an administration be a trigger for order? a capacity Is in guardianship order, consider: if best a decision interests needs person be made. have Broadly, have re are three 1. Does person have a mental incapacity? areas someone or domains else make decision-making: ir financial decisions? personal, financial 2. Does ir mental incapacity mean y are unable and If y health. are unfamiliar Within se with domains ir financial re are affairs, numerous look after ir own health safety, welfare or types can t manage capacity or have decisions never or managed capacity ir tasks. own manage ir own non-financial affairs? estate, have y made appropriate alternative 3. Does mental incapacity impact on person s arrangements is decision-specific. for its management? Global capacity, where a person is eir capable or incapable making all decision making about:

7 a. Where person should live; b. With whom person should live: c. Wher person should work; d. What health care y should receive; e. To whom y should have access? 4. Should a guardianship order be made? What is current situation regarding practicability services AUSTRALIAN CENTRE for CAPACITY being provided without and ETHICS need and for PREVENTION an order? Is re any risk? EXPLOITATION Why might an PEOPLE order be WITH needed DISABILITIES or what are consequences making or not making an order? 5. What are person s wishes? What dementia are wishes close A guide family for members/carers? NSW Health Care, Is Ageing re a and dispute? Community Do you have any workers: input in Mini-legal who should kit Series be 1.3 guardian? Do you have knowledge personal hisry and family relationships, keeping in mind aim preserving family relationships and cultural and linguistic environments? and Wills A will is only legal if person made it with testamentary capacity. The testamentary capacity is: is complex and highly specialised area expertise. If re is doubt about a person s willmaking capacity, when y are making or re-making ability make and communicate a decision; not a unitary or global concept; ir will, it is recommended that y are examined by domain specific: particular type decision a health pressional with expertise in assessing willmaking capacity. being made (personal, health, financial); and For additional decisions, information has been rejected see: in law. It is inappropria state and that Law a person by N O Neill lacks C capacity Peisah at: without furr reference type capacity task. A person s or NSW Toolkit at: capacity can vary in different circumstances, at diffe services. times, and even within domains for different types o decisions. ACCEPD acknowledges that this work is based on NSW version this Mini-kit, a collaboration between ACCEPD cannot be extrapolated from one decis and NSW Department Atrney General and Justice anor. For example, a person s capacity consent medical cannot be inferred fro ir capacity make a decision : execute a power atrney; write a will, enter a contract or deed; or AUSTRALIAN CENTRE for CAPACITY and ETHICS and PREVENTION EXPLOITATION appoint an enduring guardian. PEOPLE WITH DISABILITIES Within each Copyright: domain ACCEPD, re is a spectrum or hierarchy decisions. People may be capable Disclaimer: making simple This document decisions for (e.g. general having information a blood test) b purposes not and more is not complex legal advice. ones While (e.g. every amputation). care has been taken in relation its accuracy, no warranty is given or implied. Recipients is should situation-specific. obtain independent The advice greater before complexity making any decisions and/or conflict relying on within this information. decision-maker environment, higher level cognitive functio emotional stability/mental health necessary in order References be considered capable. See Figure below 1 1. Shulman, K., Cohen, C.A., Kirsh F.C., Hull, I.M., Champine, P.R. (2007). Assessment testamentary capacity and vulnerability undue influence. American Journal Psychiatry, 164, Reproduced with permission from American Journal decision or task specific: different for every Psychiatry (Copyright 2000) American Psychiatric Association. Authors decision made even within one domain. 2. Peisah C., Sorinmade D., Mitchell L., Hergh C. (2013) Conjoint Assoc Pr Carmelle Peisah, UNSW, MB BS(Hons) MD Decisional capacity: wards an inclusionary approach (in press) FRANZCP, old age psychiatrist; International Psychogeriatrics. Under common law, and consistent with Article 3. Nick O Neill, LLB(Melb), LLM(Lond), Pressorial Fellow, Faculty Law, 12 UNSW, formerly UN Convention President, Guardianship on Rights Tribunal NSW; Persons acgpguidelines/advancecareplans/200906vic 4 Alzheimer s Association Jenna with Macnab, Disabilities, BA LLB(Hons). a person NSW Lawyer, is always Senior presumed Policy Advisor, have NSW capacity Department make Atrney decisions. General Justice, Where NSW a person 5. has See sections 3 and 59(2)(b)(i) Guardianship and dementia Toolkit author this may ;and be a trigger for a capacity Administration Act 1993 (SA) Acknowledgement: if a decision needs be made. Broadly, re are three areas or domains decision-making: Directives-a-plan--care.html Anne Meller, Clinical Consultant Nurse, Advance Care Planning. personal, financial 7. Hergh C.M.P.M. (2011) The misleading simplicity advance SES LHN and (POWH) health. Within se domains re are numerous directives. International Psychogeriatrics 23; types capacity decisions or capacity tasks. Contact ACCEPD at: accepd.capacity@gmail.com is decision-specific. Global capacity, where or on a person is eir capable or incapable making all

8 Appendix Who is appropriate authority? Where a person is unable give a valid consent ir own medical or dental, appropriate authority from whom seek substitute consent is found according list and associated comments below: 1. medical agent appointed by m under a MPOA; 2. a guardian appointed under an EG where EG includes consent medical and dental ; 3. a guardian appointed by Guardianship Board where order includes medical and dental. If re is no medical agent, guardian or enduring guardian, following specified relatives can provide consent medical or dental : (i) a spouse or domestic partner (j) a parent; (iii) a bror or sister or over 18 years; (iv) a daughter or son or over 18 years; (v) a person who acts in loco parentis i.e. provides main ongoing day day care and supervision person (not being person who is going provide ). Where no one is available in above categories provide substitute consent, or where re is a dispute or conflict about, Guardianship Board can provide consent medical or dental. This involves an application, and a hearing conducted by, Board. The application Board has be made by: (i) a relative mentally incapacitated person; (ii) docr, dentist or or health pressional proposing give ; or (iii) any or person who Board is satisfied has a proper interest in matter. Summary Guide Medical and Dental Consent for adults 18 years and over who cannot consent Category Medical and dental Emergency medical Prescribed Treatment Medical means or procedures administered or carried out by a medical practitioner or or health pressional in course pressional practice and includes prescription or supply drugs Dental means or procedures carried out by a dentist in course dental practice But, for question can consent, does not include: Emergency medical Prescribed Emergency medical is any, except prescribed, given : A patient who is incapable consenting By a docr who is opinion that is necessary meet an imminent risk life or health and that opinion is supported by written opinion anor docr who has personally examined patient; and patient (if 16 years or older) has not, best docr's knowledge, refused consent. The only prescribed s are: Sterilisation Termination pregnancy Who can consent Appropriate authority (See Who is appropriate authority? in text) No consent needed Guardianship Board must consent