Focusing on individual needs: Developing the law's mechanisms for mentally disabled and elderly people

The author examines the development in Australia of mechanisms for formal legal representation for people who are mentally incompetent: these include guardianship and property management; enduring powers of attorney; and government schemes for pensioners. Other legal protections discussed include the implementation of a statutorily required agreement between owners and residents in nursing homes. The paper lists the principles which now permeate legislation for formal legal representation — client-centred decision-making standards; limited loss of civil rights; encouragement of independence; deference to the wishes of the individual; informal and accessible determination and review processes — and sounds a warning about the influence of legal culture, particularly when there are people with legal experience on bodies determining whether substitute decision-making should be implemented. It calls for lawyers to be sensitive to the influence they are capable of exerting and also recommends steps which can be taken to rectify weaknesses in the enduring power of attorney and government pensioner schemes. Finally the paper considers the new government initiatives to improve the conditions of people in aged care accommodation and raises some of the problems which can be anticipated in implementing that programme.