How to Choose a Legal Decision Maker as You Age – 3 Things to Consider

Joseph Ibrahim, Monash University and Amelia Grossi, Monash University

“It’s my life and I’ll do what I want,” Eric Burdon of The Animals sang to the baby boomer generation. Unfortunately, this is not always the case. As we age, sometimes we are no longer able to make our own decisions. Diseases that affect the brain, such as dementia, stroke, and traumatic brain injury, can impair cognition and thinking.

Some people may choose to appoint a medical treatment decision maker or a durable power of attorney to make certain decisions on their behalf. Alternatively, a court or tribunal may appoint a guardian or conservator to help guide decisions about health care, finances, housing and lifestyle.

Who is the right person to take on this important role? Is it the family member or partner who knows you best? Or someone with time and energy? Maybe someone who understands the services you need – like a nurse, an accountant or a real estate agent?

The role of a decision-making representative has changed significantly in recent years, moving from a paternalistic approach to a more person-centered approach. Our research looks at the differences between these approaches and how subconscious bias can influence decision-making.

Caring

Nowadays, guardianship no longer decides what is considered the “best interest” of the individual to decide what best reflects their “will and preferences”.

While previously decisions were made on the person’s behalf by their guardian or representative, the new laws require representatives to decree the person’s “wills and preferences.” In other words, make decisions with them.

This is an important difference. The latest model gives the person represented more autonomy over personal, financial and other decisions. It recognizes that although a person may have difficulties with aspects of decision-making, they should not be excluded from decisions about how to live their life. This fundamental change was previously adopted by the United Nations in the Convention on the Rights of Persons with Disabilities, to which Australia is a signatory.

Challenging in real-world situations

The will and preferences framework may seem simple, but it can be challenging in practice when concepts of empowerment are difficult to define and the will of someone with cognitive difficulties is difficult to discern.

Representatives bring their own biases, perceptions and lived experiences to the role of supporting another person in decision-making. This subjectivity is a natural and inherent part of decision making. The representative faces the challenge of putting aside their own opinion and, instead, putting themselves in the place of the person being represented to achieve what they want.

A mismatch between the age, gender, ethnicity, religion or socioeconomic status of the representative and the person represented can exacerbate this challenge.

An elderly, able-bodied, deeply religious woman with a medium to high income may have difficulty representing a young man with a disability who is an atheist and comes from a working-class background. Now, imagine a scenario in which a young person expresses a desire to go bungee jumping or parachuting, despite previously showing a fear of heights. What should your representative do?

Older people and women generally have less appetite for risk, as do those who have faith and have a high socioeconomic status.

A heightened perception of danger or a feeling that the activity is frivolous may lead the representative to reframe the situation with his or her subconscious bias. They may not respect the younger person’s wishes and preferences.

It is essential to understand what can shape a representative’s approach to decision-making. Especially when decisions involve health or living conditions.

3 things to look for when selecting a legal representative to make decisions

1. Deep understanding

An intimate understanding of your situation is crucial. An ideal representative is someone who actively listens and takes a holistic view of the circumstances. This may result from arguments with you and your loved ones. The representative must be careful that opinions are not outweighed by those of family or friends, who are often more vocal. They should have a deep sense of who you are as an individual.

2. Self-awareness

The person you choose should be able to describe their personal opinions and values ​​and understand how their perspective can influence your decisions. This is vital to mitigate the effects of pre-existing prejudice. They must be able to reflect on their own lived experiences, to understand how their history shapes their approach to decision-making. They should be able to assess whether what you would do is the same as what they think you should do and why.

3. Effective documentation

A record of conversations between the representative and the person represented often helps clarify a person’s wishes and preferences. Writing or recording forces us to commit to an idea and explain what we want to say. It helps to clarify what is intended better than a one-off conversation that may be remembered differently by participants.

More research is needed to better match representatives to the people represented. Improved tools are needed to identify the role of bias in decision-making and assess whether the wishes and preferences of the person represented are being respected.

Joseph Ibrahim, Professor, Health and Aging Law Research Unit, Department of Forensic Medicine, Monash University and Amelia Grossi,, Monash University

Image credits: Shutterstock

This article is republished from The Conversation under a Creative Commons license. Read the original article.