Can a decision maker control access?

Introduction

Among all the matters they may handle, is an appointed decision-maker authorised to permit or deny others access to the older person they are assisting?

Understanding what decision-makers are authorised to decide can be challenging, because decision-maker roles and the ways they are appointed are not consistent across Australia. Some decision-makers are appointed through documents (such as powers of attorney and medical care directives) that vary in name, content and scope across the country, and the decisions those documents authorise also vary. Other decision-making roles are appointed by state and territory administrative tribunals under different laws, leading to more variation.

Whatever the decision-making role is and however a person is appointed, what is consistent is the obligation they bear to respect the rights of the person they are assisting (who is often referred to by terms like ‘the principal’ or ‘the protected person’). This means that a decision about who can and cannot have contact with the protected person is not to be based on the decision-maker’s preferences or feelings, but on what the protected person would choose if they could.

In this article, we’ll look at:

how our decision-making transfers to someone else
how older people’s rights are maintained
what a decision-maker’s key responsibilities are
how to avoid or handle conflict arising over access

Understand consequences, facts, and communicate information

How decision-making transfers to someone else

Generally, most people are mentally able to make their own decisions, which is referred to as ‘having capacity’ (or sometimes ‘having legal capacity’).

Living into older age is one circumstance in which this decision-making ability may diminish. For many of us, a time might come when we lose capacity and become unable to make our own decisions about things like our finances, our medical care, where we live or who we have contact with. If that happens, somebody else will have to make these decisions on our behalf.

To plan for this possibility while we still have capacity, we can appoint decision-makers ourselves as part of our future planning. The processes and documents for appointing decision-makers (and the terms used) differs in many ways between the various states and territories, and as a result, what we can authorise the decision-maker to decide for us can also differ. Some of the decision-makers we appoint are called ‘attorneys’, but other terms might be used in some states.

After we lose capacity we cannot appoint decision-makers for ourselves, but the administrative tribunal in our home state or territory may be able to do it for us so that our decisions will still be made. The laws that govern these appointments are particular to each state or territory and can be quite varied. These decision-makers are often, but not always, known as ‘guardians’.

Jane’s story illustrates the difference between appointing our decision-maker ourselves and one being appointed for us.

Jane's Story: appointed in advance

Image of an older woman looking downward

When she turns 65, Jane appoints her daughter, Helen, as her decision-maker for all matters. She instructs that Helen can only begin to make decisions on her behalf if she loses capacity and cannot make them herself. This doesn’t happen until 15 years later, when Jane experiences advanced dementia. Until then, Jane continues to make her own decisions about everything.

If Jane had not appointed a decision-maker before she lost capacity, the administrative tribunal in her state or territory would probably be asked to appoint someone for her. The decision-maker that a tribunal appoints will often be a family member or friend, but if no-one suitable is available, the tribunal will appoint an independent person.

Image of an older man looking directly into camera

Rights and responsibilities

As you probably already know, all people have inherent rights that don’t depend on race, gender, sexuality, religion, nationality, language, age or any other status. It’s important to realise that an older person’s rights do not cease if they lose capacity. For example, even if they are unable to make their own decisions, they still have the right:

to be treated with respect and dignity
to have their independence maintained in the least restrictive manner possible
to participate in society and to not be isolated from people they would choose to socialise with if they could.

Anyone appointed as a decision-maker for another person has responsibilities to that person. One of the main responsibilities is to recognise and respect the older person’s rights and freedoms, to empower the person to live as they would choose to live if they still had capacity. This applies even if the decision-maker personally disagrees with the older person’s known preferences or choices.

In practical terms, this means making any decisions on their behalf as closely as possible to the way they would have done themselves – including questions of who can and cannot have access to the older person.

Maintaining the person’s existing relationships and following their preferences for who has contact with them is an important way to respect their rights. The decision-maker needs to consider the person’s previous decisions and wishes about the relationship with the potential visitor and make the access decisions they genuinely think the person would make. Dirk and Annelies’ situation is an example of how to do this.

Dirk and Annelies’ story

Image of an older asian man resting his chin on his left hand

Dirk always had a volatile relationship with his daughter, Annelies. When he grew older, he regretted how he behaved as a father and often felt flat and depressed after Annelies’ visits, sometimes becoming very emotional.

Some years later Dirk developed advanced dementia and could no longer speak. As his appointed decision-maker, his wife, Ilse, found it difficult to allow Annelies to visit and see Dirk be upset. However, she knew that he had previously chosen to continue seeing his daughter even though it upset him, so he should continue to do so unless he communicated otherwise.

Imager of an older woman with dark, shoulder-length hair reviewing some paperwork

The limits of decision-making documents

Being an older person’s decision-maker – whether it’s called an attorney, guardian or any other name – does not automatically give us the right to decide everything for them. It’s very important for older people, their families and friends, and decision-makers to understand this.

What a decision-maker can do is limited to what has been authorised – by either the future planning document that appointed them or the relevant state or territory legislation that governs the appointment. So, for example, an attorney appointed under an enduring power of attorney to make only financial decisions cannot make decisions about where the principal lives or who can visit them.

An appointed decision-maker must check and respect the limits of their appointment. Other people who have an interest in the care of the older person can refer to the document or legislation to check what’s allowed.

For this reason, residential aged care facilities will often ask for a copy of the power of attorney document or the contact details of any appointed attorney (whether the power of attorney is active or not). This enables them to check what the decision-maker is authorised to do, which helps them provide the appropriate care to the older person.

The following stories are examples of how the limits of appointed decision-making apply.

Aamani’s attorney: finances yes, access no

Image on an older woman wearing glasses reviewing paperwork with a young man

Aamani is still making most of her own decisions when she moves into aged care, but she has appointed her son, Nigil, as her power of attorney for financial decisions. This means the management team will communicate with Nigil about bills but directly with Aamani about all other decisions.

If Nigil requested that his sister, Dipti, be stopped from visiting their mother, the aged care facility would check the power of attorney document. They can then remind Nigil that access decisions are up to Aamani and that his appointment does not allow him to make those decisions.

Phillip’s relationships: specific instructions

Image of an older asian man sitting outside and talking with friends

Phillip appointed his second wife, May, to make decisions for him if he loses capacity in the future. Knowing that there may be some tension between May and his children from his first marriage, Sarah and Simon, Phillip let all his family members know that he wanted to always maintain his relationship with Sarah and Simon, and he included this instruction in his enduring power of attorney document. This means May cannot stop Sarah and Simon from visiting their father in the future.

Jo’s guardian: following previous decisions

Image of an older woman resting in a hospital bed.

Jo had recently separated from her partner, Adrian, when she was incapacitated by a stroke. After some deliberation, the tribunal in her home state of Western Australia appointed Jo’s sister, Melissa, as her guardian. Under her guardianship powers, Melissa restricted Adrian from contact with Jo as she could see his visits upset her and she knew Jo had not wanted to continue the relationship.

Leave instructions. Understand. Talk. Get legal advice. Appoint.

Tips for avoiding and resolving access disputes

Appoint a decision-maker as part of your future planning in case you lose capacity, even if you don’t think any access disputes or other kinds of problems will arise.
Understand how decision-maker appointments are made and applied in your home state or territory. Read all the information available through your state or territory government, resources like Compass, or organisations such as Legal Aid.
Leave instructions about your wishes and preferences regarding access. If there is someone you know you wouldn’t want to have contact you, write it down in the document that sets out what your decision-maker is authorised to do.
Talk to people about your preferences and wishes.
Get legal advice when you appoint your decision-maker, to help you make the best arrangements for your future care.

What can you do if you are being denied access?

Everything a decision-maker does for an older person (or ‘protected person’) must be in their best interests. So if you believe it’s not in the protected person’s best interests to deny you access to them, you can apply to the relevant state or territory administrative tribunal to have the decision-maker’s appointment reviewed.

You can find a list of the tribunals at the end of this article.

Case study: guardianship and access in New South Wales

In New South Wales, a decision-maker appointed for most health and lifestyle decisions is known as an ‘enduring guardian’. Because the Guardianship Act 1987 (NSW), which governs these guardianships, does not mention access, it doesn’t answer the question of whether a guardian in that state is allowed to make decisions about access. However, the question recently arose in the NSW Supreme Court in the case of EB v GB (No 2) [2022] NSWSC 1011.

The dispute over access

The 98-year-old father in the case had Alzheimer’s disease, didn’t recognise most people and could not communicate. He had moved into a residential aged care facility in 2019, and he had previously appointed his wife as his decision-maker, as both enduring guardian (for health and lifestyle decisions) and attorney (for financial decisions). The couple were estranged from their daughter following complex legal proceedings she had started 4 years earlier against family members, but in May 2020 the daughter asked to visit him, having not seen her father for about 3 years.

The wife believed that visits would distress him because of the estrangement and his cognitive decline, but two video meetings between the pair were held in that year. On both occasions the father was mostly unresponsive and didn’t show that he recognised the daughter. The facility management member who attended the meetings felt the daughter didn’t seem to grasp the extent of his condition and was persistent and emotional in trying to connect with him. When the daughter next contacted her father, by phone about 18 months later, he screamed when she told him who she was and then became unresponsive.

The wife, in her role as guardian, refused to let the daughter see him again because the family were concerned about how her behaviour might affect the father in the condition he was in. In the ensuing negotiations with the daughter’s solicitor, the wife’s solicitor argued that as the father’s guardian, the wife was allowed to decide who could visit him. Eventually the matter went to the NSW Supreme Court to decide.

How the Court decided

As the area of dispute was a lifestyle matter, the Court looked at the guardianship document that appointed the wife and the state legislation relating to guardianships to determine what she was authorised to decide. The father had used the standard Appointment of Enduring Guardian document to appoint his wife to make any health and lifestyle decisions for him. That document said his appointed guardian was authorised to:

decide where he lived
decide what health care he received
decide what other kinds of personal services he received, and
consent to medical or dental treatment for him.

The Court determined that those authorisations did not cover access and contact and that state legislation didn’t cover them, either. On that basis, the Court decided that the wife, as the father’s guardian, did not have the authority to refuse the daughter contact. If the Appointment of Enduring Guardian had contained specific instructions about access, it would likely have given the wife authority to decide whether the daughter could visit and have contact.