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Chapter 9. Substitute decision-making and end of life issues

Introduction

As people grow older they are more likely to either have a disability or to be caring for a partner with disabilities. In particular, older people are more likely than other age groups to have intellectual impairments associated with cognitive disorders such as dementia and senility. In addition, older people may be more vulnerable to head or brain injuries arising from strokes or falls.¹ All of these factors may result in diminished capacity to make decisions regarding property or financial interests, as well as various personal, health and lifestyle decisions.

According to the Australian Bureau of Statistics (ABS), 2.5 per cent of those aged 65 to 74 have an intellectual disability, and seven per cent are affected by a head injury, stroke or brain damage. The corresponding percentages for those aged 75 to 84 are three per cent and nine per cent respectively, and nine per cent and 10 per cent for those aged 85 and over. Thirty-one per cent of all people over the age of 65 with a disability have a profound or severe restriction. In contrast, only two per cent of people aged 15 to 64 have an intellectual disability, with one per cent affected by a head injury, stroke or brain damage. Twenty-four per cent of all people aged 15 to 64 with a disability have a profound or severe restriction.²

The prospect of diminishing capacity associated with ageing may cause many older people to consider options for substitute decision-making for financial and personal/lifestyle matters. In addition, as older people have a lower future life expectancy than do younger people, they may give greater consideration to issues associated with end of life. In 2002, the median age of death was 76.2 years for men and 82.2 years for women.³ The need for older people to consider methods of advance decision-making regarding the distribution of assets after one’s death is more pressing than for other age groups. Further, as the prospect of widowhood increases with age, an older person may be more likely to be confronted with issues of estate administration for their deceased spouse.

This chapter focuses on the legal issues associated with substitute decision-making and end of life, and considers the instruments, services and organisations available to older people to assist them with these issues.