I think patronising might be the most difficult word right now. I think the context for the word being applied, is vastly nuanced.
By  – Director of Feeney Family Law
One person’s concern is another’s control. Offering to help can be colluding with denial or be disempowering.These are all real ideas and real responses to actions.It is no longer easy, to be sure of how an action will be received.  It is no longer easy, to know what motivates an action.Conduct is closely scrutinised.  A single act or statements made can be seized on social Media.  Some attitudes are not acceptable, even if they are well intended.QCAT in the Guardianship jurisdiction is called upon to consider conduct all the time.The obligations of an attorney pursuant to the Powers of Attorney Act 1998 (Qld) are enormous, and I suspect unknown to many who act in the role.These obligations are set out below from schedule 1 of the Power of Attorney Act 1998 (Qld).
Part 1 – General principles
1. Presumption of capacityAn adult is presumed to have capacity for a matter.

2. Same human rights

  • The right of all adults to the same basic human rights
  • regardless of a particular adult’s capacity must be recognised
  • and taken into account.
  • The importance of empowering an adult to exercise the adult’s
  • basic human rights must also be recognised and taken into
  • account

3. Individual valueAn adult’s right to respect for his or her human worth and dignity as an individual must be recognised and taken into account.

4. Valued role as member of society

  • An adult’s right to be a valued member of society must be recognised and taken into account.
  • Accordingly, the importance of encouraging and supporting an adult to perform social roles valued in society must be taken into account.

5. Participation in community lifeThe importance of encouraging and supporting an adult to live a life in the general community, and to take part in activities enjoyed by the general community, must be taken into account.

6. Encouragement of self-relianceThe importance of encouraging and supporting an adult to achieve the adult’s maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable, must be taken into account.

7. Maximum participation, minimal limitations and substituted judgment

  • An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life, including the development of policies, programs and services for people with impaired capacity for a matter, must be recognised and taken into account.
  • Also, the importance of preserving, to the greatest extent practicable, an adult’s right to make his or her own decisions must be taken into account.
  • So, for example—
    1. the adult must be given any necessary support, and access to information, to enable the adult to participate in decisions affecting the adult’s life; and
    2. to the greatest extent practicable, for exercising power for a matter for the adult, the adult’s views and wishes are to be sought and taken into account; and
    3. a person or other entity in performing a function or exercising a power under this Act must do so in the way least restrictive of the adult’s rights.
  • Also, the principle of substituted judgment must be used so that if, from the adult’s previous actions, it is reasonably practicable to work out what the adult’s views and wishes would be, a person or other entity in performing a function or exercising a power under this Act, or an enduring document, must take into account what the person or other entity considers would be the adult’s views wishes.
  • However, a person or other entity in performing a function or exercising a power under this Act, or an enduring document, must do so in a way consistent with the adult’s proper care and protection.
  • Views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct.

8. Maintenance of existing supportive relationshipsThe importance of maintaining an adult’s existing supportive relationships must be taken into account.

9. Maintenance of environment and values

  • The importance of maintaining an adult’s cultural and linguistic environment, and set of values (including any religious beliefs), must be taken into account.
  • For an adult who is a member of an Aboriginal community or a Torres Strait Islander, this means the importance of maintaining the adult’s Aboriginal or Torres Strait Islander cultural and linguistic environment, and set of values (including Aboriginal tradition or Island custom), must be taken into account.

Note—Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships—see the Acts Interpretation Act 1954, schedule 1. Island custom, known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships—see the Acts Interpretation Act 1954, schedule 1.

10. Appropriate to circumstancesPower for a matter should be exercised by an attorney for an adult in a way that is appropriate to the adult’s characteristics and needs.

11. ConfidentialityAn adult’s right to confidentiality of information about the adult must be recognised and taken into account.

Given that most attorneys are family members it might come as a surprise that this is not the time to be a loving despot but that the work of the attorney is really all about the adult they are making decision in substitution for.After the loss of capacity, an adult’s right to waive the right to privacy cannot be a substituted decision. They must recognise the adult’s right to confidentiality and pursuant to section 74A of the Powers of Attorney Act 1998; they are prohibited from using confidential information other than in instances allowed for in section 74 of the Powers of Attorney Act 1998.  A breach of section 74A carries a maximum penalty of 200 penalty units or in dollar terms, $24,380.As an attorney is acting in an environment where the language and actions around assisting, stepping in, empowering and disempowering are all complex and agitated, it is important that attorneys tread carefully.

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