6.22 There are three key practices already in place that operate to protect older persons from abuse by guardians or financial administrators.
6.23 First, tribunals must hold hearings in order to appoint guardians or administrators. Tribunals are required to refuse unwarranted applications, and appoint appropriate persons, companies, or state trustees or guardians, where needed. As discussed above, certain eligibility criteria must be satisfied before tribunals can confer an appointment and make orders. Orders need not be plenary, and can relate only to particular decision making.
6.24 Legal Aid (ACT) submitted that the process of holding a hearing before any appointment is made, and the ‘option of appointing the public advocate and Trustee if no other guardian or manager is available or suitable’, means that there are fewer incidences of elder abuse by an appointed guardian or financial administrator.
6.25 Secondly, there are pre-existing oversight mechanisms for guardians and financial administrators. This includes statutory review of orders, required in most states and territories. Legal Aid (ACT) observed that the requirement for regular tribunal reviews of guardianship and financial administration orders acts as a safeguard against abuse.
6.26 Tribunals can review appointments where guardians or administrators have not acted in accordance with the stated principles of the relevant legislation, or did not exercise their powers as directed by the order. Tribunal appointments can be reviewed at the request of the appointed person, the person, the state trustee/guardian, or by a concerned third party. There are also ongoing obligations for financial administrators to report, including the requirement to submit a financial plan and provide annual records to tribunals or state trustees. These requirements provide key safeguards against abuse.
6.27 Thirdly,public guardians/advocates and state trustees produce accessible material in print and online to help people understand their roles and responsibilities, and to make decisions as guardians or administrators. Many state bodies also provide telephone support lines and offer community education.
6.28 Chapter 3 discusses investigation of abuse or neglect by public guardians/advocates, including the conduct of guardians or administrators. This clearly also has a protective function.
Office of the Public Advocate Victoria, Submission 95.
See, eg, Guardianship and Administration Act 2000 (Qld) ch 3; Guardianship Act 1987 (NSW) pt 3; Guardianship and Administration Act (1986) (Vic) 1986 pt 4, 5; Guardianship and Administration Act (1990) (WA) 1990 pt 4.
Under the safeguarding principle recommended by the ALRC, appointments should be a last resort; limited in scope; proportionate; and apply for the shortest possible time: Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Discussion Paper No 81 (2014) rec 3-4.
Legal Aid ACT, Submission 58.
See, eg, Guardianship Act 1987 (NSW) pt 3, 3A; Guardianship and Administration Act (1986) (Vic) 1986 pt 4, 5; Guardianship and Administration Act 2000 (Qld) ch 3; Guardianship and Administration Act (1990) (WA) 1990 pt 5, 6; Guardianship and Administration Act (1993) (SA) div 2, 3.
See, eg, Guardianship and Administration Act (1993) (SA) s 44.
For example, in NSW, the Private Guardian Support Unit provides an information line service; In Victoria, the Victorian Civil and Administrative Tribunal provides a phone line for administrators seeking advice and the Office of the Public Advocate has an advice line.