Decision-making representatives

When a decision-making representative should be appointed

Suzanne and her business and life partner Matilda were architects who jointly owned the goodwill, property, and assets of their architectural practice. They also jointly owned the house in which they lived in and were joint owners of an investment property.

When Suzanne was surveying a building that was under construction, she suffered a fall and was critically injured. She damaged her spine which left her unable to walk, and also had severe head injuries which left her unable to make any decisions. The prognosis was that Suzanne was unlikely to regain capacity.

Suzanne no longer had the capacity to put arrangements in place to appoint anyone to assist her to make decisions; and she had not created an enduring power of attorney. Decisions needed to be made in relation to her interest in the architectural practice, and whether her share in the investment property needed to be sold to provide funds for her ongoing care.

The expensive cost of Suzanne’s care meant that these decisions would have to be made sooner rather than later to cover the bills. Matilda makes an application to court and having considered the situation, the court appoints Matilda as decision-making representative, specifying certain personal welfare as well as property and affairs decisions in the decision-making representation order.

Comment: This vignette illustrates that Suzanne lacked capacity to make any decisions with regard to her property and affairs and had not created an enduring power of attorney that could be registered. It was therefore necessary for the court to either make the decisions or appoint a decision-making representative to make specified decisions on behalf of Suzanne. The decisions to be made were not once off decisions or extremely urgent. However, they did require consideration as to what would be of greatest benefit to Suzanne and did require effective management for the foreseeable future of Suzanne’s business and property interests.

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