2 The author gratefully acknowledges the research assistance provided in the preparation of this article by Mr Patrick Keyser, BA (Hons), LLB (Hons) Sydney.

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7 While families do provide services (such as direct care), they have an even larger role in mediating with bureaucracies, and in preserving economic stability through cross family transfers: Hagestad (n. 3 above), 132, 136.

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16 In Australia the decision of the High court in Rogers v Whittaker (1992) 175 CLR 479 pitched the duty of disclosure owed by doctors to patients at a higher level than the ‘professional custom’ adopted in the UK in cases such as Sidaway v Board of Governors of the Bethlehem Royal Hospital and the Maudsley Hospital [1985] 1 AC 871 and Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Compare Reibl v Hughes (1980) 114 DLR (3d) 1. For a review: Monks, S.The Concept of Informed Consent in the United States, Canada, England and Australia; A comparative analysis, (1993) 17, University of Queensland Law Journal, 222–233.Google ScholarPubMed

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20 Silberfeld, M., Fish, A.When the Mind Fails … (n. 8 above), 5.Google Scholar The central issue in competency is respect for the values of the affected person (and the risk of contamination by the values of external judges): Kopelman, L., On the Evaluative Nature of Competency and Capacity Judgments' (1990) 13, International Journal of Law and Psychiatry, 309–329, at 327.CrossRefGoogle Scholar

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24 There is a very thorough review of the law in the Weisstub Report: 324 ff, esp., 398–400.

25 Discussed in Bryce (n. 2 above), p. 73–4.

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29 Multi-disciplinary geriatric assessments of elderly patients can effectively identify new conditions and previously unknown disabilities, and can decrease both hospitalization and mortality; however time and financial constraints frequently prevent its adoption: Pannill, F., A Patient-Completed Screening Instrument for Functional Disability in the Elderly (1991) 90, American Journal of Medicine 320–327, 320.CrossRefGoogle ScholarPubMed

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32 Goodenough for instance, criticises ‘expert’ geriatric assessment reports for lacking objectivity: judgements of local treating doctors may be coloured by knowledge of family expectations; current conditions may be transient ones, resulting from medication or disruption of familiar patterns; difficulties in communication can be misread as evidence of declining competence; and assessments rarely focus on capacity to perform specific social tasks: Goodenough, G., The Lack of Objectivity of Physician Evaluations in Geriatric Guardianship Cases, (1988) 14, Journal of Contemporary Law, 53, 55–56.Google ScholarPubMed

33 Anderer (n. 12 above), 19–21.

34 Anderer, 22. The ‘Basic Principles’ used in determining incompetency under this approach are set out at 22–24.

35 Silberfeld, M., Fish, A. When the Mind Fails… (n. 8 above).

36 The Weisstub Report also proposed a staged approach: (i) a threshold requirement, (ii) a screening process, (iii) formal assessment, and (iv) opportunity for review board re-consideration: Weisstub (n. 8 above), 232–245.

37 Kapp (n. 26 above), 20; Roca, R., Determining Decisional Capacity: A medical perspective, (1994) 62 Fordham Law Review, 1177–1196 at 1183.Google Scholar

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41 Moore v Guardianship and Administration Board [1990], VR 902 (Vic. Sup. Ct., Gobbo J.)

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70 Anderer (n. 12 above), p. v.

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74 Hull et al., 159–60; Gerard, (n. 25 above), 378.

75 Alexander and Lewin (n. 18 above).

76 Alexander and Lewin, id. New York has experimented with voluntary committees which replace the role of family or friends for those who lack this resource: Sundram, C., Informed Consent for Major Medical Treatment of Mentally Disabled People (1988) 318, New England Journal of Medicine, 1368–1373.CrossRefGoogle ScholarPubMed

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79 The Ontario legislation comprises the Consent to Treatment Act 1992; the Advocacy Act 1992; and the Substitute Decisions Act 1992. The package, which is due to come into force from March 1995, privileges (and enforce) the expressed wishes of the person embodied in enduring powers of attorney, provides active citizen (and public) advocacy to reduce the need for substitute decisionmaking, and confines statutory guardianship to cases of (comparatively rare) exception: A Guide to the Substitute Decisions Act. Queens Printer for Ontario, Toronto, 1994.Google Scholar Similar principles apply under British Columbia legislation.

80 Alexander, (n. 10 above) 171–174.

81 The inaugural reform was Victoria's, Guardianship and Administration Board Act 1986.Google Scholar Other legislation in order of adoption includes: Guardianship Act 1987 (NSW)[renamed effective 8 April 1993; formerly ‘Disability Services and Guardianship Act’] together with an allied but court-based parallel jurisdiction over property: Protected Estates Act 1983 (NSW); Adult Guardianship Act 1988 (NT); Protection of Personal and Property Rights Act 1988 (NZ). Guardianship and Management of Property Act 1991, Community Advocate Act 1991 (ACT) (operative from 31 April 1992); Guardianship and Administration Act 1990 (WA) (assent 7 Sept. 1990, partial proclamation 1 July 1992); Guardianship and Administration Amendment Act 1992 (WA) (assent and commencement 17 June 1992). Guardianship and Administration Act 1993 (SA) (Assent 27 May 1993, proclamation imminent). Pre-reform legislation still applies elsewhere, though reforms are being considered: Intellectually Disabled Citizens Act 1985 (Qld) [a committee is able to appoint local legal practitioners etc as ‘legal friends’ for a limited group of people]; Mental Health Act 1963 (Tas) Part 111 [a medical model].

82 Carney, T., Tait, D. Adult Guardianship in Australia (n. 76 above).

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91 The Ontario legislation provides that: ‘(1) a person may, while capable, express wishes with respect to treatment. (2) Wishes may be expressed in a power of attorney, in a prescribed form, in another written form, orally or in any other manner’: Consent to Treatment Act 1992, s. 12. The legislation then directs that people giving or refusing consent for another should act in accordance with any ‘expressed wishes’ (s. 13(1)) or in the absence of wishes, in accordance with the person's ‘best interests’ (which in turn is defined to take into account any known values and beliefs, non-binding wishes, and a variety of other factors such as benefits/harms and least restrictive alternatives: s. 13(2)).

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