RESPONSE TO THE DISCUSSION PAPER: LIVING WILLS: OPAWA
30 Terrace Road, East Perth
Western Australia 6004
P.O. Box 6293, East Perth
Western Australia 6892
Telephone: (08) 9278 7300
Country Freecall: 1800 807 437
Facsimile: (08) 9278 7333
Email: opa@justice.moj.wa.gov.au
Internet: http://www.moj.wa.gov.au
Disability Rights Policy Unit
Human Rights and Equal Opportunities Commission
GPO Box 5218
SYDNEY 1042
DISCUSSION PAPER: LIVING WILLS
Please accept my response to the above discussion paper.
I look forward to receiving further information as this issue progresses.
Yours sincerely
JULIE ROBERTS
PUBLIC ADVOCATE
29 January 1999
Response to the Human Rights and Equal Opportunities
Commission
Living Wills for People with Mental Illnesses
Introduction
The Public Advocate of Western Australia supports the concept of people
with mental illnesses having significant and formalised input into the
treatment of their illness. A pre-planning instrument such as a living
will is a useful tool for people with fluctuating illnesses to contribute
to their management while they are unwell.
The Western Australian Guardianship and Administration Act (1990) was proclaimed in 1992 to remedy a series of deficiencies which were experienced
in the management of the personal and financial affairs of people who lacked
capacity, or who wished to plan for that possible event.
The Guardianship and Administration Act (1990) balances the rights
and autonomy of the individual with the ability to provide care and control
should the person be deemed to be unable to make decisions for themselves
The Public Advocate is vested with the functions of investigation of
applications made to the Board for the appointment of a guardian or administrator;
advocacy on behalf of the person with the decision making disability at
the time of the Hearing; investigation of allegations that a person is
in need of a guardian or administrator, or is under an inappropriate guardianship
or administration order; community education in respect to the Act and
systemic advocacy. The Public Advocate can be appointed as Guardian of
Last Resort when there is no family member or other interested party available
or deemed suitable to be guardian.
The Guardianship and Administration Act (1990) also brought into
existence the Enduring Power of Attorney. This allows the Donor to nominate
one or two people to become a financial manager(s), referred to as the
Donee. The Enduring Power of Attorney survives the Donor's incapacity,
unlike the Power of Attorney that ceases, and can come into effect immediately
upon signing or on declaration of incapacity by the Guardianship and Administration
Board.
As the Commission is aware the Public Advocate canvassed public opinion
on Ulyesses Agreements as part of a community consultation in respect to
legislative changes to the Guardianship and Administration Act (1990).
Community views on Enduring Personal Powers of Attorney and Advance Directives
were also sought. Responses in respect to Ulyesses Agreements were limited,
which perhaps indicated a lack of prior knowledge or discussion around
the issue.
After consideration by the Guardianship and Administration Board and
the Office of the Public Advocate, it was determined that prior to supporting
the introduction of Uylesses Agreements further research in the area was
required.
The Public Advocate is promoting the introduction Enduring Personal
Powers of Attorney amongst recommended amendments to the Guardianship and
Administration Act currently being considered by the Attorney General.
This will allow the appointment of a Donee who would have authority to
consent to personal/lifestyle and medical decisions if the Donor develops
a decision making disability and is unable to make reasoned decisions.
The Enduring Personal Powers of Attorney would come into operation only
when the Donor is unable to make decisions for themselves. It is proposed
that the Public Advocate would not be able to be nominated as a Donee.
Legislatively it is proposed that the Enduring Personal Power of Attorney
is placed within the Western Australian Guardianship and Administration
Act (1990). The Guardianship and Administration Board would deal with
any dispute in respect to decisions made by the Donee and would have the
power to appoint a Guardian, should the Donee not be acting in the best
interests of the Donor.
It is not known if having both an Enduring Personal Power of Attorney
and an Enduring Power of Attorney will be similar having the proposed living
will. If they are introduced the Public Advocate will seek to monitor the
use of Enduring Personal Powers of Attorney by people with fluctuating
mental illness and evaluate whether their needs are being met through this
tool.
General
It is the view of the Public Advocate that there is a need for a pre-planning
document to address lifestyle and medical issues for all community
members, and she therefore support the use of this type of tool for people
with mental illness.
There is concern that a living will created solely as an advance directive
would, due to its nature, be unable to be adapted to meet particular circumstances,
which may not have been predicted at the time the living will was made.
The inclusion of a substitute decision-maker as part of a living will,
therefore, gives greater scope for this to be a useful tool.
The combination of both a statement of wishes re treatment and a substitute
decision maker would allow the Donor to contribute to their treatment plan,
to state their wishes and to have the protection of an advocate/decision
maker. In Western Australia an Enduring Power of Attorney currently has
provision for this, as will the recommended Enduring Personal Power of
Attorney.
Legislatively a living will should be placed within the Guardianship
and Administration Act 1990, in order that mechanisms for the appointment
of substitute decision-makers can be utilised to their fullest extent.
Guardianship and Administration Boards or their equivelents, which now
exist in all states and territories excepting the Northern Territory, have
extensive experience in determining capacity of people with decision-making
disabilities, as well as considering their best interests.
Consultation and input from consumer groups is seen to be essential.
Terminology
As the term living will is generally used in medical systems
as a substitute term for an advance directive, the Public Advocate supports
the use of alternative terminology. As the word will is usually
associated with the death of the person who has drawn it up, it is suggested
that this is not an appropriate word to describe the tool.
The Commission would be aware the term used in Ontario and British Columbia,
Canada is Ulysses Agreement. It is understood that they are also
referred to psychiatric wills.
Public Advocate, having used the term Ulysses Agreement during
her community consultation process, is not committed to using it on an
ongoing basis.
It is recommended that terminology is adopted that encapsulates the
purpose of the tool and which consumer groups are comfortable.
Decision-making
Should living wills for people with psychiatric illnesses be introduced
it would be suggested that they encapsulate all sections of a persons'
life which could be effected by their psychiatric illness. This would include
medical treatment, accommodation issues and financial management. Limitations
in terms of any potential clashes with the relevant mental health and guardianship
legislation would need to be established.
Substitute Decision Makers
The inclusion of the provision to have a substitute decision makers
(the Donee) as part of a living will is viewed by the Public Advocate as
a helpful addition to the tool. Without this inclusion the living will
would have all of the constraints faced by other forms of advanced directives,
including an inability to necessarily predict the situation the consumer
might find themselves a part of.
The obligations and responsibilities of a Donee would be dependent upon
the role given to the Donee by the Donor, and the legislated requirements
in respect to decision making. It is suggested that the Donee would be
expected to act in the best interests of the Donor, rather than to act
in a manner predetermined by the Donor. The Western Australian Guardianship
and Administration Act 1990, s51 (see attached) outlines the issues
that are to be considered by a Guardian when making decisions on behalf
of a represented person. It is suggested that this is a reasonable model
to guide decisions of Donee under a living will. Guardianship legislation
in other juristrictions could provide other models for consideration.
Legislative provision should be made to ensure that the best interests
of the Donor, when unable to make decisions, are met. If it were believed
that the appointed Donee was not acting in the Donor's best interests there
should be the legislative ability to revoke the appointment. The Guardianship
and Administration Board, for example, has the ability to intervene by
either varying or revoking an Enduring Powers of Attorney, when the Donor
has lost capacity.
Similarly consideration would need to be given to the status of a living
will and the role of the Donee if the consumer was admitted as an involuntary
patient to a psychiatric hospital. For example, would it be the expectation
that a Donee have the role of consenting to psychiatric treatment? If the
Donee did not consent or was not consulted would this be the equivalent
of a competent person was being treated against their will?
The Public Advocate would not object to having different Donees to make
lifestyle/medical decisions and financial decisions, should the Donor chose
to appoint Donees for these purposes. The Donees would be obliged to co-ordinate
their roles and tasks carefully. However, having different Donees for different
tasks within each of these instruments would not be supported as it could
create confusion for service providers and diminish the viability of the
instrument.
Participation and Consultation
For any person who is expected to comply with a treatment regime, consultation
and participation in the treatment plan are logically one of the easiest
ways to begin this process. The success of living wills, should they be
introduced, will be dependant upon the degree to which consumers and those
working in the area of psychiatry embrace the concept, and it would seem
to be important to ensure that both groups were part of any planning and
implementation process.
Individual Treatment Plans
Living wills could ensure better treatment for consumers both in respect
to before and after care strategies and discharge planning. The devising
of individual treatment plans would seem to be an important part to ensure
appropriate functioning of a living will, and that the consumer's wishes
in respect to their treatment are clear.
Maintenance of employment and housing through a living will would most
likely be dependent upon individual issues. Maintenance of accommodation,
for example, through payment of rent would be able to be managed under
provision for another person to access bank accounts. It would seem, without
the assistance of case examples, that maintenance of employment may not
be able to be catered for under a living will.
Advocacy
Advocacy services, both general and those such as the Office of the
Public Advocate, would benefit from consumers having a living will in respect
to supporting the consumer's wishes during an advocacy process.
For example, should an application for Guardianship and/or Administration
be made when a consumer had a living will there would be a clear statement
of the person's previous wishes that could be supported by this Office
at the time of a hearing of the Guardianship and Administration Board.
This would also assist the Guardianship and Administration Board, and their
equivalents, in their deliberations and the appointed Guardian/Administrator
in the execution of their duties.
If the proposed model of a living will was introduced it is to be assumed
that one of the roles of the appointed substitute decision-maker would
be to act as an advocate.
Administration
The invoking and revoking of a living will would be dependent upon how
the instrument was structured.
If living wills were a combination of an Enduring Personal Power of
Attorney and an Enduring Power of Attorney the Donor would have several
options in respect to invoking both instruments.
In respect to lifestyle and medical decisions it is the strong view
of the Public Advocate that a substitute decision making process could
only be embarked upon when the Donor was unable to make reasoned decisions.
It is not seen to be appropriate that a person had a substitute decision
maker for these types of decisions when they are competent.
It is proposed that the Donor will be able to choose the method that
will invoke the Enduring Personal Powers of Attorney, either through a
declaration of incapacity by the Guardianship and Administration Board
or the certification of incapacity by two independent medical practitioners.
The Enduring Personal Power of Attorney would be revoked upon Donor
resuming capacity.
For Enduring Powers of Attorney the Donor can choose for this to be
invoked at the time of signing or upon declaration of incapacity by the
Guardianship and Administration Board. Enduring Powers of Attorney can
be revoked upon the resumption of capacity if it was the desire of the
Donor.
In respect to the determination of capacity attached is a copy of the
requirements of capacity for an Enduring Power of Attorney used in Western
Australia. Guidelines in respect to capacity to sign an Enduring Personal
Power of Attorney have yet to be established.
Resources
Resources in the area of psychiatric services are already stretched,
and without additional resources to assist with the implementation and
operation of living wills the systems' willingness to embrace the concept
could be reduced.
The determining of resources for living wills would be reliant upon
the estimated need for this tool. It is recommended that any costings include
a community education component that would target consumers, those working
in psychiatric services and the general public.
Legislative and service considerations
In Western Australia it would be recommended that living wills would
included under the Guardianship and Administration Act 1990.
It could be argued that the Mental Health Act 1996 is the most
appropriate legislation, given that the target users of the legislation
are mental health workers and consumers. However, the Guardianship and
Administration Act 1990 has provisions for appointment of Enduring
Powers of Attorney and (it is hoped in the near future) will also be accommodating
Enduring Personal Powers of Attorney. The Guardianship and Administration
Act 1990 with its principles of operation can offer people with decision
making disabilities a significant degree of protection.
Fragmenting the appointment of substitute decision-makers between several
pieces of legislation is viewed to be unhelpful in respect to consistency
of legislation and would also be confusing for the public.
Other interests and obligations
The obligations a living will would place on health professionals, courts
and tribunals would be dependant upon the legislated power of a living
will, in particular that of the Donee. If the Donee's decisions had the
same weight as if the Donor made them, it would be expected that a living
will would place significant obligations upon all parties. It would be
conceivable that the Donee could over-ride decisions made by health professionals,
thus requiring protective legislation for an appeal process.
It would be recommended that the authority of a Donee when the consumer
is an involuntary patient be made explicit in legislation. Currently in
Western Australia under the Mental Health Act 1996 if a person is
an involuntary patient a Guardian's consent is not required for psychiatric
treatment to be administered. While there have not been any problems to
date (due in part, no doubt, to the small number of people with psychiatric
illnesses who have Guardians), potential for difficulties is present.
Despite any limitations the Public Advocate is of the view that the
appointment of Donees must be legally binding. Following on from this,
decisions made on behalf of a Donee would also be legally binding.
Workability
Resources for professionals and Donees operating living wills is seen
to be an essential component to the success of this instrument. Additionally,
resources must be available to ensure that community education can be conducted.
Literature from Canada suggests the need for consumers using Ulysses
Agreements to have strong support networks to ensure their viability, and
those networks will need to be supported.
If there was sufficient levels of support for living wills from consumers
and workers employed by Psychiatric Services it is expected that living
wills would be workable.
Conclusion
The Western Australian Public Advocate supports the introduction of
an instrument which will allow people with fluctuating mental illnesses
to contribute to their psychiatric treatment, and will follow the discussions
in this area with interest.
As outlined in the introduction to this response it is currently the
intent of the Public Advocate to promote the introduction of Enduring Personal
Powers of Attorney, which will allow for the appointment of a substitute
decision maker when the Donor is incapacitated. It is hoped that the introduction
of the Enduring Personal Power of Attorney when used in conjunction with
an Enduring Power of Attorney will provide a similar level of support to
the proposed living will.
Monitoring of the introduction of the Enduring Personal Power of Attorney
will take place in order to ascertain whether it is meeting the needs of
those using it. Modification of the Enduring Personal Power of Attorney
or the introduction of additional instruments such as the Uylesses Agreement
would be carefully considered if the Enduring Personal Power of Attorney
is not meeting the needs of people with fluctuating mental illnesses.
Prepared by: Deborah Brill, A/Senior Policy Officer
Endorsed: Julie Roberts, Public Advocate
Glossary of Terms
Administrator: A person appointed by the Guardianship and Administration
Board to make financial and legal decisions for a represented person.
Advance Directive: A direction given in advance of incapacity
and indicating the type of medical treatment a person would like to have
or not to have in the event that they are no longer competent to decide
Donee: A person who is nominated to become a financial or legal
manager via an Enduring Power of Attorney, or to be a substitute decision
maker for lifestyle and medical issues under an Enduring Personal Power
of Attorney.
Donor: A person who nominates another to become Donee under an
Enduring Power of Attorney or an Enduring Personal Power of Attorney
Enduring Personal Power of Attorney: A mechanism by which a competent
person can nominate a substitute decision maker to make lifestyle and medical
decisions should they lose capacity and become unable to make reasoned
decisions. Enduring Personal Powers of Attorney do not yet exist in Western
Australia.
Enduring Power of Attorney: A mechanism by which a competent
person can appoint another to manage their financial or legal affairs.
An Enduring Power of Attorney survives the incapacity of the person donating
it, unlike an Ordinary Power of Attorney that ceases.
Guardian: A person appointed by the Guardianship and Administration
Board to make lifestyle decisions in the best interests of a person who
has been deemed to be unable to make reasoned decisions.
Guardianship and Administration Board of Western Australia: An
independent statutory tribunal created under the Guardianship and Administration
Act 1990
Office of the Public Advocate: Provides advocacy, investigation
and representation services on behalf of people for whom appointment of
a guardian or administrator may be considered necessary to safeguard their
best interests. The Public Advocate may be appointed as Guardian of Last
Resort when there is no-one else suitable or available to be appointed
Guardian.
Proposed Represented Person: A person for whom an application
has been made to the Guardianship and Administration Board of Western Australia.
Uylesses Agreements: A specific power of attorney for people
with bi-polar affective disorder and other disorders which can render a
person incapable of making reasoned judgements for periods of time. A Uylesses
Agreement identifies when, and under what conditions, it would come into
effect; who is to have responsibility for substitute decision making and
for what decisions; what cross-consultation is to occur; the circumstances
when revocation may take place.
Guardian
to act in best interests of represented person
51.(1)Subject
to any direction of the Board, a guardian shall act according to his opinion
of the best interests of the represented person.
(2)Without
limiting the generality of subsection (1), a guardian acts in the best
interests of a represented person if he acts as far as possible¾
as an advocate for the represented person;
(b)
in such a way as to encourage the represented person to live in the general
community and participate as much as possible in the life of the community;
(c)
in such a way as to encourage and assist the represented person to become
capable of caring for himself and of making reasonable judgments in respect
of matters relating to his person;
(d)
in such a way as to protect the represented person from neglect, abuse
or exploitation;
(e)
in consultation with the represented person, taking into account, as far
as possible, the wishes of that person as expressed, in whatever manner,
or as gathered from the person's previous actions;
(f)
in the manner that is least restrictive of the rights, while consistent
with the proper protection, of the represented person;
(g)
in such a way as to maintain any supportive relationships the represented
person has; and
(h)
in such a way as to maintain the represented person's familiar cultural,
linguistic and religious environment.
in subsection (2) (a) shall be read as authorizing a guardian to act contrary
to the Legal Practitioners Act 1893.
51 amended by No. 7 of 1996 s.21.]
OFFICE OF THE PUBLIC ADVOCATE
NOTES FOR GUIDANCE OF PERSONS
CONCERNED IN THE EXECUTION
OF ENDURING POWERS OF ATTORNEY
To be capable of signing an enduring power of attorney, a person must
understand the nature and effect of the document. In understanding the
nature and effect of the document the person must:
- Know the nature and extent of his/her estate
- Know that the enduring power of attorney will give the attorney complete
authority to deal with the estate (provided that such dealings are consistent
with the interests of the donor of the power). - Know that whilst competent she/he may direct the attorney to act in a particular
way and may revoke the power at will. - Know that:
- if clause 4(a) has effect, the power will continue to operate without any
form of registration or official authorisation whether or not he/she has
legal capacity - if clause 4(b) has effect, the power will only operate when a declaration
by the Guardianship and Administration Board is made that he/she does not
have legal capacity.
5. Know that the attorney's stewardship will not be monitored or audited
as a matter of course, and that therefore in choosing an attorney, the
donor is placing a very high level of trust in the appointed person or
organisation.