Sasha Borissenko: Boomers not as protected as they think by power-of-attorney rules

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Capacity law in New Zealand is fascinating because we have a privately-organised model.

Unlike most state-supervision-heavy commonwealth countries, few people know about the law, and ageing boomers are going to be kicking themselves when they realise they're not as protected as they should be.

Seeing as our leading adult guardianship legislation - the Protection of Personal and Property Rights Act 1988 (PPPRA) - is over 30 years old, and New Zealand has ratified the United Nations Convention on the Rights of Persons with Disabilities, it is no surprise
that Justice Minister Andrew Little has asked the Law Commission to commence work on a review in the next year.

To quote capacity law aficionado, Iris Reuvecamp, of Vida Law: "it's inevitable that at some stage, someone you love or you yourself will need support making decisions, or someone else will need to make decisions for you, because you lack capacity to do so. So
it's in your interests to pay attention and take steps to protect your rights, and the way you want to live your life, before that happens to you.

What people often don't realise, says Reuvecamp, is that when you have impaired capacity, the law in New Zealand doesn't allow your family, whānau or next of kin to make decisions for you, unless they have legal status – that is, you have appointed them to be your Enduring Power of Attorney (an EPOA) for personal care and welfare or property, or the court appointed equivalent, a welfare guardian or property manager.

"These issues should start to be in the public's consciousness for a number of reasons, including the fact that we have a rapidly rising elderly population, and the older old – that is, those over the age of 85, are increasing the fastest.

Within the 65+ age group, the number of people aged 85 and over (85+) is expected to increase significantly. From 78,000 in 2014, it is highly likely that 220,000–270,000 people will be aged 85+ in 2041, and 320,000–450,000 in 2068. By the 2050s, about 1 in 4 people aged 65+ will be 85+, compared with 1 in 8 in 2014.

"As the likelihood of dementia increases with age, this will also result in an increased number of people with impaired capacity," Reuvecamp says.

When we talk about capacity, we are talking about a person's ability to make their own decisions – that means, whether they understand the information relevant to the decision, can retain the information, can use or weigh that information as part of the process
of making the decision or can communicate their decision.

By capacity law, we're talking about the law that governs the position of people who lack capacity to make decisions on their own behalf, and the role played by others who can make decisions for them.

Ultimately, the law provides a framework for the balancing act of preserving personal autonomy, and protecting vulnerable people from harm.

Mental capacity law can be found in a number of areas of the law, with the PPPRA as the main piece of legislation relating to adults.

But Reuvecamp says there are concerns about the adequacy of the current legal and regulatory framework, particularly regarding accessibility, understanding, compliance with human rights obligations, oversight and monitoring, and enforceability.

Judge Recordon said we rely on the "basic decency of Kiwi families and individuals" to take the initiative to put the necessary arrangements in place.

At a minimum, it costs about $300 to appoint an EPOA, which requires you to see a lawyer, legal executive, or a trustee corporation (such as the Public Trust). While this mechanism was introduced as a protective mechanism, the cost serves as a deterrent for people wanting to protect their interests before they lose capacity.

If a person has already lost capacity, and they need someone to support them to make decisions, or someone to make decisions on their behalf a court application may be required to appoint either a welfare guardian or property manager (the court-appointed equivalent of an EPOA).

Often, rest homes will require that there is an EPOA or a court-appointed equivalent as a condition of admission. Applying to the court because there is no EPOA in place can be costly, inconvenient, and take time.

The numbers for court appointed guardians/managers have almost doubled since 2008. As of April 2018, guardian applications increased from 872 in 2008 to 1716 in 2017, and PM applications increased from 688 to 1042 in 2017.

Suppose you've managed to trudge through all the hurdles to obtain an EPOA, a WG or PM, this is not the end of the saga as there is no register that lists who's appointed, and the scope of their powers.

Say you lose the original documentation, the person you appointed may not be able to act on your behalf anyway, because they cannot show that they have the legal status to do so. And if a family member takes issue with an appointment or the proxy's decisions, they won't be able to access the necessary information.

Other than having to renew a guardian/manager appointments periodically, there is no ongoing monitoring or supervision relating to conduct to ensure that these court appointed people are following their legal requirements to act in the best interests of the incapacitated person.

You can, however, make an application to the court for a review of a legal guardian's appointment and/or decisions, but there were only nine applications for directions relating to the exercise of an EPOAs 's powers in 2017, 10 for review of a particular decision, and 25 for review of WG and PM decisions.

These remarkably low numbers are probably due to a number of reasons. Imagine a relative is worried about an EPOA's dealings with their family members' assets - you'd need to gather evidence - which, coincidentally, would be under the EPOA's control. This, coupled with all the other disincentives to take someone to court, means very few applications are made. Only 16 were made in 2015, 12 in 2016, and 10 in 2017.

The cost, the lack of knowledge, and the delays that occur in the Family Court are such that the system "doesn't currently cut the mustard," Reuvecamp says.

As it stands, people don't know where to go, or what to do, when working with someone with impaired capacity which Reuvecamp says "exposes our most vulnerable people. Given that a reflection of a good society is one that looks after its most vulnerable, we need to do better. The pending review by the Law Commission is a promising first step in achieving that objective".

Should 'capacity' be applied to journalism?

The legal definition of capacity - even if not considered in practice - is of particular interest when looking at journalism. If a source appears to lack capacity, should that source be deemed as unreliable? If their account can be verified, does it matter?

I've often wondered about this in the context of talking to people in distressing or traumatic situations. Is it in their interest to go on the record? Are they in a state - say in a breaking news scenario - where they're of sound mind to be talking to you?

Reuvecamp says that irrespective of the fact there is no streamlined definition, the general rule is that people with capacity can regulate their own lives, without interference by others, and they retain this right even if they make decisions that might not be in their
best interest.

There's a presumption of capacity and competence, unless there's significant reason to think otherwise, she says.

Interestingly, the Media Council principle is a little more loosey-goosey, and doesn't talk directly to the concept of capacity other than to say "[publications] also have a duty to take reasonable steps to satisfy themselves that such sources are well informed and that the information they provide is reliable".