Substitute Decision-Making

Abstract

Decision-making capacity is generally recognised once an individual attains the age of majority and is only lost upon the determination that the individual has lost the legal capacity necessary to make a specific decision. The increase in mentally disabling conditions, as well as cognitive decline associated with ageing, mean that although people are living longer they may not have the capacity required at law to make their own decisions. Nevertheless, individuals still need to accomplish the tasks associated with day to day living including purchasing food and paying expenses. The assessment of the requisite capacity to make enduring documents is the focus of this chapter. The relevant overarching principles are discussed. Although an examination of supported decision-making is outside the central scope of this work, reference to the paradigmatic shift taking place from substitute towards supported decision-making in line with the Convention on the Rights of Persons with Disabilities is made. Nevertheless, enduring documents, and substitute decision-making, still play a significant role in estate planning. Accordingly, evidencing the loss of decision-making capacity is also examined here.