Te Aka Matua o te Ture | Law Commission has today published its Second Issues Paper in its review of how the law should respond when an adult’s decision-making is affected.

Kaikōmihana | Commissioner Geof Shirtcliffe explains:

“There are many things that can affect a person’s decision-making. These include a traumatic brain injury, dementia, learning disabilities and experiences of mental distress.

If an adult’s decision-making is affected, the current law may treat their decisions differently. Some of their decisions might have no legal effect or another person might be appointed to make decisions for them.

The Government has asked us to review how the law should respond when an adult’s decision-making is affected.

In recent decades, there has been increased recognition of the human rights of disabled people and a shift towards supporting people to make their own decisions. There has also been increased recognition that the law in this area does not adequately take into account te Tiriti o Waitangi or te ao Māori. In addition, Aotearoa New Zealand is an increasingly ageing and culturally diverse population. For these reasons, aspects of the current law may no longer be fit for purpose.

In 2022 we published a Preliminary Issues Paper and ran our first round of public consultation. We are very grateful to all those who shared their personal experiences of the current law and their views on how it might be improved. We are now consulting on our Second Issues Paper, which looks at specific areas of the current law in much more detail and outlines possible options for reform.

The focus of our review is the Protection of Personal and Property Rights Act 1988. This Act is the primary piece of legislation relating to decision-making capacity. It provides for several decision-making arrangements for people who do not have decision-making capacity, such as welfare guardians, property managers and enduring powers of attorney.

Things we are considering include:

• Whether the law should continue to provide for the current decision-making arrangements and, if so, what changes should be made to them.
• How the law should recognise and provide for decision-making support.
• What the safeguards and accountability mechanisms should be.
• Options for systemic reform, including practical improvements and improving court processes.

We have also published four Key Topic documents. These are short, plain-language summaries of a few of the most important topics in the Second Issues Paper and are available in many accessible formats and in te reo Māori.

The Issues Paper and Key Topic documents are available on our website: https://huarahi-whakatau.lawcom.govt.nz.

Submissions can be made online or by one of the alternative submission options noted on the website. Submissions are due by 5pm Friday 21 June 2024.

The feedback we receive on the Second Issues Paper will inform the recommendations we make in our Final Report. We intend to deliver our Final Report to the Minister of Justice in early 2025.”

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