Major Overhaul Proposed for New Zealand’s Adult Decision‑Making Capacity Law
The ability to reason, make informed decisions, and understand the consequences of those decisions (referred to broadly as having capacity), is fundamental in the law. Capacity can determine whether a person’s decisions are considered valid, and whether that person will be held responsible for those decisions.
The Law Commission has released a Report recommending a complete reform of New Zealand’s framework for adult decision‑making capacity. The current legislation, the Protection of Personal and Property Rights Act 1988 (PPPR Act), is now more than 35 years old, and no longer meets modern expectations. Nor does it reflect contemporary understandings of disability, or of New Zealand’s obligations under the UN Convention on the Rights of Persons with Disabilities.
The Law Commission’s central recommendation is to repeal the PPPR Act and replace it with an entirely new statute designed to support autonomy, uphold rights, and provide clear safeguards. The proposals are significant and signal a shift towards a more rights‑based, supported‑decision‑making approach. These changes will be important for anyone involved in decision‑making for adults who may have impaired capacity, including families, healthcare providers, lawyers, property managers, and organisations working with vulnerable adults.
Key objectives of a new Act
The proposed new Act would introduce clear statutory purposes for the first time, including:
- promoting equality, dignity and autonomy for people with affected decision‑making ability; and
- giving effect to New Zealand’s human rights obligations.
The law would also require decision‑makers and courts to consider tikanga Māori where relevant, supported by guidance on situations in which tikanga is likely to arise.
A stronger focus on decision‑making support
A major theme of the report is the importance of accessible decision‑making support. Many people with affected decision‑making ability can make decisions when offered appropriate help, such as information in an accessible format or assistance weighing up options.
To improve access to this support, the Commission proposes:
- a statutory definition of “decision‑making support”;
- requirements that representatives and attorneys ensure the person can participate in decisions made on their behalf; and
- a new formal supporter
Introduction of formal supporters
Many people seek the advice of family and friends when making decisions. Currently, people performing this role have been unable to talk to or get information from third parties like banks or utility providers, due to privacy concerns. This will change under the Law Commission’s proposed new role of “formal supporter”.
Formal supporters would have defined powers and duties, including the ability to access relevant confidential information, enabling them to provide meaningful assistance. They would not have authority to make decisions on a person’s behalf. The appointment of a formal supporter could be made by the person themselves or, with their agreement, by the Family Court.
This role is intended to bridge the gap between informal support and full representative decision‑making, while helping to meet New Zealand’s obligations under the UN’s Disability Convention.
Decision‑making on behalf of a person
Although the report emphasises supported decision‑making, it acknowledges that some people will still require decisions to be made on their behalf. It recommends retaining:
- Enduring powers of attorney (EPOAs), with improvements to accessibility and safeguards.
- Court‑appointed representatives (separating welfare and property roles).
- Court‑ordered decisions in situations where a representative is not required.
A single legal test for decision‑making capacity
A new simplified test is proposed for determining when a person lacks decision‑making capacity. A person would be deemed unable to make a specific decision if, with appropriate support, they cannot:
- understand information relevant to the decision;
- retain the information long enough to decide;
- use or weigh that information; or
- communicate their decision.
The test would apply consistently across the Act, including to EPOAs, formal supporters, and court‑appointed representatives. The Commission also recommends clearer guidance and a code of practice for professional assessments.
Decision-making rules for attorneys and representatives
The new Act would introduce three statutory rules that must guide all decisions made on behalf of another person:
- Decisions should be centred on the person’s wishes and values, and respect their rights.
- The person should be supported to participate in decisions wherever possible.
- Decisions must be based on all relevant information, including prior statements of wishes.
These rules would embed a rights‑based approach and require proactive engagement with the person’s views.
Changes to enduring powers of attorney
The Commission proposes retaining the core EPOA framework but strengthening it through:
- allowing multiple attorneys for both welfare and property;
- simplifying forms and enabling remote witnessing;
- introducing more flexible safeguards, including donor‑driven record‑keeping requirements; and
- bringing eligibility rules into line with those for court‑appointed representatives.
A national voluntary register of EPOAs is also recommended to help health and social care professionals identify whether an EPOA exists.
Court appointments: when and how they should occur
The Family Court would have jurisdiction to appoint a representative only if:
- the person lacks decision‑making capacity for the relevant decisions; and
- there is a clear need for the appointment.
A “need” would exist when an appointment is required to give effect to the person’s wishes and values, to enable decisions that must be made by someone with capacity, or to avoid a material risk of significant harm. The Court must also consider whether a less restrictive option, such as a formal supporter, could meet the need.
Advance directives
The report clarifies the relationship between advance directives and substitute decision‑making. A valid and applicable advance directive should operate as the person’s own decision and therefore sit outside the scope of attorney or court decision‑making powers.
Oversight and system improvements
To strengthen safeguards and increase accessibility, the report recommends:
- creating a single public oversight agency (similar to an Office of the Public Guardian);
- improving Family Court processes, including access to legal representation and more accessible documentation; and
- evaluating whether a publicly funded pool of welfare representatives could address current shortages.
What happens now?
The Law Commission’s report has been presented to Parliament for consideration. If Parliament accepts the recommendations, it will begin the process of drafting new legislation.
These proposed changes are likely to still be some years away from being operative. In the meantime, people should continue to use EPOAs and advance directives. Attorneys should also look to adopt the proposed decision-making rules, involving the person in any decisions as much as possible, and respecting their wishes.
If you have any questions about EPOAs or advance directives, or about decision-making capacity issues generally, please contact a member of our health law team.
Special thanks to Partner Nick Laing and Professional Support Lawyer Hayley Dale for preparing this article.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
