Law Talks Episode: How is supported decision-making different from an Enduring Power of Attorney?

Robyn: Good morning and welcome to another edition of law talks here on 4CRB. Today we’re going to talk about a major change in the way older Australians can be supported as they age.

For many families, navigating aged care has always involved helping a parent or loved one understand options, fill out forms or make choices about their daily life. But under the new Aged Care Act, there is now a formal framework recognising this kind of support, and it’s designed to preserve a person’s autonomy for as long as possible.

Instead of someone simply stepping in and making decisions for an older person, supported decision making focuses on helping them make their own informed choices.

It’s a big cultural shift in aged care, and one that’s created a lot of interest and a bit of confusion, particularly around how this differs from an enduring power of attorney.

To help us understand the difference between supported decision making and substitute decision making, we are joined by Attwood Marshall Lawyers Accredited Aged Care Professional and Senior Associate, Larisa Kapur. Thanks for joining us, Larisa.

Larisa: Thanks for having me, Robyn.

Robyn: Well, for listeners who may not have heard of supported decision making before, what does it actually mean in practice and how does it change the way older people can receive help?

Larisa: Well supported decision making is essentially about giving people help to make their own decisions rather than having decisions made for them. So, in practice it means that an older person can have a trusted supporter, like a family member friend or an advocate who explains information, outlines the options available to them and helps them weigh the pros and cons of certain things and navigate that aged care system. So, the key is that the person still makes those decisions themselves.

So even if they need support to understand the information or process, they’re still making their own decision. So it’s a big shift from older models where someone automatically take over decisions once there was a concern or any concerns around capacity. Now it’s about empowering choice and control while still offering guidance.

Robyn: Larisa, what kinds of decisions can a supporter help with under the new Age Care Act?

Larisa: Well, supporters can help with a wide range of day-to-day and bigger life decisions. So, this can include things like choosing an aged care service, understanding certain areas of that service, planning for home modifications even, or deciding when or where to move into residential aged care.

So basically, any decision where the person might benefit from help understanding information, weighing options, or considering consequences, and having that guidance, the supporter can guide them, explained and assist.

But the decision always stays with the person themselves. They’re just there helping out essentially.

Robyn: Okay. And are there any decisions that they shouldn’t be part of?

Larisa: Well, yeah, supporters aren’t meant to make the decisions themselves. So, for example, they shouldn’t be the ones signing any contracts or moving funds around or directing care without the person’s consent.

So also, they shouldn’t be involved in situations where there’s like a conflict of interest., like if they could personally benefit from a decision that they’re making on behalf of the older person.

So the supporter’s role is to inform, explain and clarify, not to essentially replace the person’s decision-making.

Robyn: So how does a supporter differ from an enduring power of attorney?

Larisa: Well, the key difference is who actually makes the decision. So an enduring power of attorney is a formal legal arrangement where the attorney can legally make decisions on behalf of the person, usually for financial or personal matters, particularly when the person loses capacity. And if they lose capacity, then even for medical health and lifestyle. An enduring power of attorney can engage in substituted decision making, whereas a supporter on the other hand doesn’t have that legal authority to make the decision. They provide advice and can help with understanding of options and things and support the decision-making process, while the person themselves, remains with that control. Think of it as they can support with any decision made.

Robyn: With choices or making choices.

Larisa: Yes, that’s right. Exactly.

Robyn: So, who should people consider appointing as a supporter?

Larisa: Supporters should be people the older person trusts, who understand their values and preferences, and who are willing and have the time to commit to supporting decisions.

It could be a family member, close friend, or someone experienced in advocacy or aged care. It’s important that they act in the person’s best interest, respect their choices and that they can communicate clearly.

Robyn: And if someone already has an enduring power of attorney in place, do they still need to think about appointing a supporter as well?

Larisa: Well, potentially yes. So even if the enduring power attorney exists, it usually only comes into play if the person loses capacity or they need the assistance while they have capacity and they’ve authorised, you know, the attorney to step in.

Whereas supported decision making is about helping the person while they still have that full capacity. Just making certain decisions about their, you know, care and needs.

So having a supporter can complement an enduring power attorney by providing guidance and support, now, even before the attorney needs to legally step in.

Robyn: They can help the person stay independent for longer, essentially?

Larisa: Yes, essentially. That’s right.

Robyn: Yeah. So how formal is the process for appointing a supporter?

Larisa: Well, it’s relatively informal compared to the process of an enduring power of attorney. The new Aged Care Act allows a person to nominate a supporter in writing and aged care providers will usually keep that on record, so there’s no need for like a lawyer or a justice of the peace to witness that form or anything.

But it’s important to clearly document the arrangement and share it with the aged care service so that they know who you’re authorising to support you.

Robyn: What does this change or what does this change mean for families who are already helping the loved one navigate decisions about aged care? Do they need to officially be listed as a supporter to continue providing that help?

Larisa: Not necessarily. We’ve heard that sometimes these family members who have unofficially been helping the older person navigate aged care through my aged care or the facility, some of them are migrating automatically to supporters.

But families can continue to help informally. They can talk through choices and provide practical support. However, being officially recognised as a supporter, it formalises that arrangement and ensures that the aged care provider kind of acknowledges that person as the person the older person wants to be involved.

So, this can prevent confusion about you know who is allowed to participate in the discussions, who isn’t, who can and can’t receive information, and who can support those decisions.

Robyn: Larisa, thank you for clarifying all of that. So supported decision making really strengthens and protects an older person’s voice in the aged care system while giving families a clearer and respectful way to help.

It is a practical change that keeps control where it belongs with the older person themselves. Thanks for joining us today, Larisa.

Larisa: Thank you so much for having me, Robyn.

Robyn: You’ve been listening to law talks here on 4CRB, which you can hear every Friday morning from 9 o’clock.