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Australia is witnessing disruptive trends including an ageing population, the breakdown of traditional family supports, the de-institutionalisation of people with mental illnesses, a growing awareness of abuse and neglect of incapacitated persons, a desire for greater autonomy by persons with diminished capacity, a growing international rights focus, and an increase in the number of legal incapacity findings by Courts and Tribunals. As a result, Government has seen an increase in persons with diminished capacity requiring assistance to promote and protect their interests. Accordingly, there is a greater need for early interventions, support mechanisms (including supported decision making) and as a last resort the availability of litigation guardians in legal proceedings.

The traditional response by governments has been paternalistic: to draw a ‘distinct line’ between capacity and incapacity, then appoint a substitute decision maker to safeguard the interests of the incapacitated. However, under the United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’) a new international paradigm has developed that moves away from the old model of substitute decision making in favour of a holistic system of early intervention including principles of a presumption of capacity, least restrictive and least intrusive support and legal recognition of a spectrum of decision making and capacity. The new approach is exemplified by British Columbia (‘BC’). The Victorian system is in transition and has additional measures of support built into its legislative framework. The historical approach is in many ways represented by the NSW model.

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