Human Rights, Older People and Decision Making in Australia

Abstract

In Australia, someone who is concerned about the decision making capacity of an older person can seek orders from a Tribunal to grant them Powers of Attorney. This substitute decision making power denies the autonomy of the older person and may serve to allow family, caregivers or professionals to override the wishes of an older person. In extreme cases, this can lead to situations of financial, psychological and even physical abuse.

A human rights approach to the assessment of legal capacity may offer improved legal protections for older people. Further a human rights approach to capacity aligns with philosophical understandings of autonomy and vulnerability recognised by the law. This approach moves away from status based or outcomes based capacity assessments and replaces substitute decision making powers with supported decision making processes wherever possible.

In this Article the authors demonstrate how ad hoc capacity assessments in Australia have resulted from a legal system that has not kept pace with the complexity of an ageing population.

Keywords: Ageing, substititute decision making, capacity, human rights, older people

JEL Classification: K40, K10