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Legislative Assembly for the ACT: 2001 Week 9 Hansard (21 August) . . Page.. 3105 ..

MS TUCKER (continuing):

themselves. It does seem to be a reasonable precaution in some ways, but I am quite happy to look at it again if it becomes apparent that there are real problems with it.

MR STEFANIAK (Minister for Education and Attorney-General) (8.36), in reply: I can see where Mr Wood is coming from. I remember that when I was going through this initially I had some similar thoughts, but I think on balance it is important legislation. I think his fears can be somewhat allayed by the facts.

The amendments standardise the test to be applied in determining whether a person requires a guardian or a manager. The test will be the same for both and based on the represented person's decision-making capacity. A person may have a guardian or a manager appointed if he or she has impaired decision-making ability. This means the person's decision-making ability is impaired due to a physical, mental, psychological or intellectual condition or state, whether due to a diagnosable illness or not.

For a guardian or manager to be appointed, the test will be that the represented person has impaired decision-making capacity in relation to his or her health and welfare, in case of a guardian, or in relation to his or her property, in the case of a manager. During this incapacitated state, decisions will need to be made in relation to the person's health, welfare or appropriate property matters if there is a likelihood that the person will take some sort of action which could result in unreasonable risk to the person's health, welfare and property and if, without a guardian, the person's needs will not be met or their interests will be adversely affected to a significant degree. So it is very much about the person. Mr Wood asked whether it is about protecting the government. No, it is to assist the person.

The bill clarifies the principles to be followed by a person charged with making decisions on behalf of an impaired person. The basic premise is that the protected person's wishes, as far as they can be ascertained in making the decision, should be given effect to. But if by carrying out the person's wishes the person's welfare and interests would be significantly adversely affected, then the wishes should be carried out as far as possible without significantly harming his or her welfare or interests.

If a person's wishes cannot be so carried out or cannot be ascertained, then the decision-maker is to act according to the person's interests. These include protecting the person from physical or mental harm, maintaining the person's preferred lifestyle, promoting the person's financial security and preventing the person's finances from being wasted or the person from becoming destitute.

There may be some concern that the scope for deciding that a person has impaired decision-making ability is quite wide, given that the condition or state of a person can be due to a diagnosable illness or otherwise. However, there are a number of conditions that are not diagnosable as illnesses as such but nevertheless can result in impaired decision-making ability. For example, a severe brain injury caused by a motor vehicle accident may not be classified as a diagnosable illness, but I am sure that members would agree that this could result in an impaired ability to make decisions.

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