Guardianship and financial management legislation: what doctors in aged care need to know

Demographic and epidemiological changes have resulted in increasing numbers of elderly people, and in increasing numbers of elderly people suffering from various degrees of cognitive impairment, including dementia. It is well recognized that the presence of cognitive impairment may impact upon an older person's decision‐making capacity, which has, in turn, been associated with increased acknowledgement of the need for greater accessibility to methods by which substitute decision‐makers are appointed. To this end, legislation has been enacted throughout Australia to enable the appointment of substitute decision‐makers in the form of guardians and financial managers. Medical practitioners are the largest group of health professional whose opinion is sought when appointments are being considered. Despite the significance of the legislation to the evaluation of elderly people with impaired cognition, many health professionals remain unaware of the provisions of the legislation and are unclear about what information will be required. The aims of this review are first, to provide health professionals with the legal context within which their evaluations of disability and capacity take place, by way of a review of the relevant guardianship and financial management legislation in each of the states and territories of Australia; and second, to discuss how these provisions relate to existing clinical practice, with suggested guidelines for the capacity assessment. The focus and quality of information that health professionals provide will be enhanced by them having a greater understanding of their role within the wider legal context by placing in their hands knowledge of the provisions of the relevant legislation. (Intern Med J 2005; 35: 482–487)