Guidelines for field staff to assist people living in ... - Housing NSW

SECTION 8: Strategies to assist people who haveimpaired decision-making capacity8.1 Decision-making capacityDetermining a person’s decision-making capacity can involve complex issues. Whilethere are well-established legal mechanisms and government agencies whichrespond to the needs of a person who requires a substitute decision maker once ithas been determined the person is incapable of making a decision, there is nocomprehensive approach to assessing or addressing the support needs of a personwhose capacity is in question. 5 If the field staff is uncertain about the decisionmakingcapacity of the person, they should seek advice from the GuardianshipTribunal, a GP or a psychiatrist.In some cases, a person living in squalor who refuses assessment will be aware ofthe potential consequences of their decision and the risks associated with this.Although their decision to refuse assessment may be considered unwise, as long asthey can demonstrate adequate understanding of the choices they could make, andthe consequences of these choices, then they would generally be considered to havedecision-making capacity.Once it has been determined that a person living in severe domestic squalor lacksthe cognitive capacity to make decisions about their circumstances, such asaccommodation, health, lifestyle choices and financial management, decisions mayneed to be made on their behalf. However, this approach requires carefulconsideration of the ethical principles involved. It is important to respect the person’sautonomy and values, while at the same time protecting the person from furtherharm, and minimising the risk of harm to others.Where the decision-making capacity of the person is determined to be impaired,appointment of a substitute decision-maker is required. This is the role of a guardian.8.2 Guardianship and Financial Management OrdersApplying for guardianship or financial management orders may sometimes be auseful option when there are concerns about the cognitive capacity of the personliving in severe domestic squalor. Appointment of a guardian or financial managerfor the person authorises someone else to make decisions for the person concerned.Most people with impaired decision-making do not require a guardian, becausefamily or friends provide assistance without the need for a legal order. In othercases, when the circumstances are such that a private guardian will not be able toachieve the best interests of the person with a disability, particularly where no one isavailable, or there is conflict among family members, the Public Guardian may beappointed.See Appendix 7 for details regarding the Guardianship Tribunal, appointment of aguardian and the role of the Office of the Protective Commissioner.For an example see Case Study 5 in Appendix 8.5 Attorney General’s Department of NSW, Are the rights of people whose capacity is in question beingadequately promoted and protected: A discussion Paper, March 2006, pg. 425