When a person has dementia, they can slowly lose their cognitive abilities, and when that happens it can cause problems with how they make decisions for themselves. A person with dementia, has certain legal rights that they, their families and their carers should all be aware of.

It may not be something that is often discussed, but if possible, should be done so that everyone is in agreeance with what the supported person wants and needs. It can seem scary to talk about legal rights, and decisions do not need to be made quickly or immediately – ideally it is best to sort these things out when a person with dementia is still legally capable to do so.

What is the “capacity” to make decisions?

All of Australia’s legislations are based on the principle of “presumption of capacity” which means that it is assumed that you are capable of making decisions for yourself, unless proven otherwise.

Just because a person has been diagnosed with dementia, does not mean they do not have the capacity to make decisions, especially if they have been diagnosed with early dementia.

When a person has dementia, their ability to make decisions can fluctuate. It can change depending on the time of day, how stressed or anxious they are, what medications they’re on or even on how their physical health is at the time.

A family member cannot simply say that their relative or loved one is incapable of making decisions, rather, the legal judgement is made by a Board or Tribunal based on evidence, such as a medical examination by a doctor or psychologist.

For a person who has been diagnosed with dementia, it is best to plan ahead. Discussing with family and friends what your wishes are, and even appointing someone (this can be one person or a number of people) to make decisions on their behalf when they are no longer able to can seem like a daunting task. However, when the substitute decision maker/s have been chosen early and wisely, then the person with dementia can rest assured that their wishes will be respected.

In Australia, there are terms that are used for the substitute decision makers depending on their role. For example, the commonly used term for the decision-maker when it comes to financial matters is an “Attorney” which is given to them through a “Power of Attorney”. The decision maker in charge of healthcare and personal decisions is usually called an “Enduring Guardian”.

What if I haven’t chosen a substitute decision maker?

When you haven’t made a choice on who your substitute decision maker is before you are no longer capable, then someone, depending on what the decision is, will be appointed to you.

If the person with dementia has not appointed an Attorney, through a Power of Attorney, to make financial decisions for them, then a person can make an application with the Board or Tribunal to appoint a substitute decision maker.

If no one has been appointed to make health care or personal decisions for the person with dementia, then usually a family member or someone who has a close relationship is appointed as “Person Responsible” to make decisions on their behalf.

When the Board or Tribunal is appointing a substitute decision maker, they take many factors into consideration. This usually includes the relationship between the person who needs support and the potential substitute decision maker, their own skill and ability to make decisions and if the person is capable of undertaking the role.

It should be noted that everyone with dementia is different, and everyone’s life, family, financial, medical situation is unique to them – should they want to further discuss the topic of their legal rights, they should seek out professional legal advice.

For more information contact Alzheimer’s Australia at 1800 100 500

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