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Legislative Assembly for the ACT: 2001 Week 5 Hansard (3 May) . . Page.. 1410 ..

� while that incapacity endures decisions will be required about the relevant matter, or the person is likely to do something in relation to it may cause unreasonable risk to his or her welfare or property; and

� without the appointment the person's needs would not be met, or the person's interests would be significantly adversely affected.

The Bill retains the provision of the Act that people shall not be taken to have such a condition merely because they are eccentric, have particular religious political beliefs, have a particular sexual preference or be under the influence of drugs or alcohol.

I now turn to the principles to be applied for making decisions under the Act for those with impaired ability to care for themselves. The Act currently sets out a list of principles to be followed by anyone (such as the Tribunal, guardians or managers) making a decision about people protected under the Act.

The first principle is that the wishes of these people should receive paramount consideration. The list then goes on to require that the decision should be as nearly as possible the decision the protected person would have made if not impaired, that it should cause the least interference with the person's life, and encourage the person to look after himself or herself, live in the community and join in community activities.

The application of this list of principles has the potential to create conflict between the person's wishes and their welfare. Giving effect to the person's wishes may endanger his or her personal and financial welfare. Indeed, as the Supreme Court held, the person's wishes override the Tribunal's view that he or she is incapable of making reasonable decisions.

This approach creates potential conflict between the various considerations that must be taken into account when making decisions. The Act does not cater for conditions that disable the intellect or reasoning power but not the capacity to form and express views.

To address the issue of priorities, the Bill introduces the concept of a 'person's interests'. The term 'person's interests' is defined to include the preservation of safety, the prevention of deterioration of physical and mental health, the ability to live in, and take part in, the community, and maintain the non-harmful aspects of his or her lifestyle.

The concept also includes the promotion of financial security, and prevention of dissipation of financial resources or destitution.

The Bill then sets out a basic principle to apply to making decisions under the Act. It provides that the person's wishes, as far as they can be ascertained, should be the basis for decision-making.

This basic principle applies unless to do so would significantly adversely affect the person's welfare and interests. In that case, the person's wishes should be carried out to the greatest extent possible that will not significantly adversely affect his or her welfare or interests.

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