Podcast: Elder Abuse Report: recommendations on guardianship and financial administration



Marie-Claire Muir: Hi, my name’s Marie-Claire Muir I’m the Communications Manager at the Australian Law Reform Commission. The ALRC has just released its Report for its Inquiry into Elder Abuse. I’m here today with Shreeya Smith, a Legal Officer who has been working on that inquiry. Shreeya, I understand that in your role in the inquiry you were focusing on the area of guardianship and financial administration. Perhaps we could kick-off, if you could explain to us what we’re really talking about in terms of guardianship and financial administration.

Shreeya Smith: When you are looking to figure out what should happen if you were to lose your ability to make decisions about your life and affairs, there are two things that could happen: one is that you can plan ahead and you can appoint someone to look after your affairs for you. If you don’t do that, that’s when guardians or financial administrator become involved.

So if you haven’t appointed someone, then you or somebody on your behalf, say a doctor or family member or an aged-care facility, can make an application to a tribunal and ask that someone be appointed to look after your affairs. Where the person looking after your affairs is looking after personal and lifestyle decisions that person is called a guardian. Where that person is looking after your financial affairs, so paying your bills, dealing with any property transactions, those sorts of things, that person is called a financial administrator.

Marie-Claire: OK, so if the tribunal’s appointing somebody to be that guardian or administrator, who are they going to appoint? Is that going to be somebody you know or a stranger? How does that work?

Shreeya: That’s a really good question Marie-Claire. The default position is that if they can they will appoint somebody that you know. It’s only in the event that they cannot find someone that you know who is willing and able to do the job, in that case in the context of the guardians they might appoint someone called the Public Guardian, whichis a state body that acts as a guardian over what we call ‘last resort’. In the financial administration space, if it’s not somebody that you know, it could be one of two parties. It could be either a professional trustee company or it could the Public Trustee. These bodies exist in all states and territories. If you want to think of it at the forefront and the most likely scenario, it is more often than not somebody that you know that will be appointed in this role.

Marie-Claire: Thanks for talking that through. Getting back to the context of elder abuse, what were the problems in relation to guardians and financial administrators?

Shreeya : Given that this is somebody that these people are appointed by a tribunal after a hearing and determination process, what we heard was that abuse by these people is less likely than abuse by, say for example, someone that is acting under a power of attorney or someone that happens to have no authority but for example steals your ATM card and starts taking money out of your account.

So it’s much less likely that it will be a guardian or financial administrator but where the abuse is committed by a guardian or a financial administrator, what we heard was that more often than not it’s because they don’t understand what their role or their responsibilities are. The reason for this is, often times this person has probably been looking after you and helping you through as you start losing your decision-making ability and then there’s this point where the appointment occurs after which there are a number of formal requirements that you need to meet and a best interest standard that you need to fulfil in order to complete your role under your statutory obligations and in compliance with your statutory obligations. So you might just keep doing what you’ve always done because that’s what you think you should do because that’s what’s always happened but it may, in fact in some circumstances, constitute financial abuse for example or elder abuse. The issue that we heard was that it’s not necessarily in this context intentional abuse but a failure to understand what it is that you ought to be doing in this space.

So that was one issue, the other issue that we heard about, as I said to you at the start of all of this discussion, the guardians and the financial administrators are appointed following a hearing process and after a tribunal’s looked at who is best placed to do this job. We heard during the course of the inquiry that sometimes in that hearing process the older person isn’t given a voice, isn’t given a chance to actually appear and put forward their view about what they would like or what they would see as appropriate. The problem, the link to abuse here, is that it is less likely that the person that is appointed might commit elder abuse if:

  • they know what the person wants through the process; but also
  • if that person is someone that the older person clearly says they would like to have look after their affairs.

So those were the two key concerns:

  1. people didn’t necessarily understand what their role was; and
  2. the older person isn’t always given the opportunity to get involved in the application process.

Marie-Claire: What recommendations have we made in this space that will help prevent those two things from happening?

Shreeya : For the first, the key recommendation that we’ve made is that someone that is appointed a guardian or financial administrator should have to sign an undertaking saying that they will comply with their roles and responsibilities. This provides an opportunity, then, for a lot of material and information to be provided to the person that’s appointed. We’ve suggested a few different ways that this could go, so for example, one thing we’ve suggested might work would be to give everyone that is appointed into this role a guide on what good guardianship or good administration is. There is a lot of this kind of material already available through a number of bodies including the tribunals, state trustee bodies, and public advocates and guardians but actually giving them that material.

The other thing we’ve suggested that might be useful is that the undertaking be supported by the exercise of a tribunal’s discretion to say, ‘hey look I think you will be fine in this role but it would be helpful for you to undergo some additional training so we’re making this tribunal order conditional on you completing this training’, so you need to complete it, for example, and then maybe lodge a certificate saying that you’ve completed the training.

So we’ve explored a number of different ways it could happen but the underlying recommendation is around signing an undertaking because that then is a launch pad for a lot of the education and awareness raising that can be done to improve the knowledge base of guardians and administrators.

Marie-Claire: It sounds like it’s really about improving or ensuring that guardians really understand their responsibilities and how they are expected to uphold the rights of the older person.

Shreeya : Absolutely and the signing of the undertaking in and of itself is an important and significant acknowledgement of what it is that they should be doing, it emphasises what they are meant to be doing in their role.

You’ll remember the second question and the second issue was trying to ensure that older people are able to participate in the hearing and the application process and what we have suggested around that, is that best practice guidelines be developed to facilitate older people being able to participate to the greatest extent possible. So this is geared at improving tribunal practice and also to showcase how tribunals have done it really well, as well, with the hope of bringing a certain standard across the country.

Marie-Claire: Great, it certainly sounds like that would be a good result. Thanks Shreeya for explaining that to us.

Guardianship and administration were just one area in a host of reform recommendations that were in the larger report. You can find the full Elder Abuse Report on the ALRC website www.alrc.gov.au. You’ll also find other podcasts that discuss other areas of reform in this inquiry. Thanks very much.