10.19 As discussed in Chapter 2, one of the key debates of central importance to the Inquiry concerned the extent to which art 12 of the CRPD permits ‘substitute’ or ‘fully supported’ decision-making.
10.20 A major element of this debate concerns the extent to which the CRPD permits decision-making in the form of guardianship and administration, as currently provided for under state and territory laws. However, regardless of the lack of consensus, there is ‘a general acknowledgement’, underpinned by the paradigm shift heralded by the CRPD, that ‘the focus must move from what a person with disability cannot do to the supports that should be provided to enable them to make decisions and exercise their legal capacity’.
10.21 Some room for fully supported decision-making should remain. This conclusion is, in part, dictated by the reality that some people will always need decisions made for them. The AGAC submitted that there needs to be ‘careful development of supported decision making practices’, but supported decision-making cannot ‘completely replace substitute decision making and there will be an ongoing need for substitute decision making in limited circumstances’. The Caxton Legal Centre noted:
given the projected exponential increase in the ageing population and the consequent increase in the incidence of terminal cognitive diseases such as dementia and Alzheimer’s, coupled with the factor of social isolation and sparse or non-existent support networks for many older people, the retention of a process of formal substituted decision making may be essential.
10.22 Guardianship and administration laws need to be reviewed to ensure, among other things, that guardianship and administration are:
- invoked only as a last resort and after considering the availability of support to assist people in decision-making;
- as confined in scope and duration as is reasonably possible;
- subject to accessible mechanisms for review; and
- consistent with decision-making that respects the will, preferences and rights of the individual.
10.23 For example, the provisions of state and territory guardianship legislation differ in the extent to which decision-making that respects the will, preferences and rights of the individual is expressly promoted. In New South Wales, Western Australia and the Northern Territory, there is an overriding duty of guardians and administrators to act in the ‘best interest’ of the person. In Victoria and Tasmania, the ‘best interest’ of the person is an equal consideration along with the wishes of the person and the least restrictive alternative. In the Australian Capital Territory and Queensland, guardians are obliged to act in a way that least interferes with a person’s right to make a decision, or to give effect to a person’s wishes, so far as they can be determined. South Australia provides for ‘substitute judgment’, where the paramount consideration is the guardian’s opinion of what the wishes of the person would have been if they were not mentally incapacitated.
10.24 Recent reviews give important leads on how guardianship and administration laws may change. For example, the VLRC review recommended the development of a supported decision-making and a co-decision-making structure.
10.25 Briefly, this would provide recognition to supporters—trusted persons providing support and assistance to an adult who needs help in making a decision—and external oversight by the Victorian Civil and Administrative Tribunal (VCAT). The co-decision-maker would act jointly with the adult, and decisions would have to be made with the consent and authority of the represented person, and would be treated as if they were the acts of the represented person with capacity.
10.26 Appointments would be made by the VCAT and the range of decisions for which the person needs support could, in principle, range across the areas previously covered by guardians and administrators. Safeguards against exploitation are detailed and include registration of co-decision-making orders, regular review on a range of grounds and the options to renew, amend or revoke the order.
10.27 Stakeholders in this Inquiry called for continuing review of Australian guardianship laws, as has the United Nations Committee on the Rights of Persons with Disabilities (UNCRPD). AGAC stated that the principles of supported decision-making articulated in the Discussion Paper could be ‘incorporated into any review of state-based guardianship and administration regimes’.
10.28 In addition to highlighting the desirability of reviewing state and territory laws to ensure consistency with the National Decision-Making Principles and the Commonwealth decision-making model, the ALRC’s recommendation outlines a number of particular considerations that should inform such reviews. These are briefly discussed below, with particular reference to guardianship laws.
Interaction with Commonwealth supporter and representative schemes
10.29 As discussed in Chapter 4, the ALRC recommends that a Commonwealth decision-making model, including ‘supporters’ and ‘representatives’, should be introduced into relevant Commonwealth legislation, including that relating to the NDIS, social security, aged care, eHealth and privacy.
10.30 If implemented, the interaction of these Commonwealth schemes with state and territory guardianship and administration laws may need to be taken into account in review of the latter.
10.31 Chapter 4 highlights some of the issues involved but they will vary depending on what approach is taken in Commonwealth laws.
10.32 For example, the ALRC envisages that before a representative is appointed for someone, the Commonwealth agency would have to be satisfied that the person actually needs a representative, and that an appointment is not being used as a substitute for appropriate decision-making support.
10.33 While there should be a presumption that an existing state or territory appointee should be appointed where a representative is needed under a Commonwealth law, sometimes there may be both a Commonwealth representative and a state or territory appointed decision-maker. If they have power to make decisions in the same area, interaction problems may occur (or be avoided by consultation and cooperation) but ultimately where a decision is being made for the purposes of the Commonwealth legislation, the Commonwealth representative is responsible.
10.34 If an existing state or territory appointee is also appointed under Commonwealth law, other issues may arise, particularly if the appointee’s duties under state or territory legislation conflict significantly with those under Commonwealth law. Legislative change may be required to allow state or territory appointees to be appointed under orders that better align with duties and responsibilities under Commonwealth legislation—for example, so that they can make both lifestyle and financial decisions as representatives under the NDIS.
10.35 It is clearly desirable for there to be consistency between Commonwealth, state and territory legislation dealing with individual decision-making, including in relation to terminology. At present, no such consistency exists:
Terminology varies considerably between state/territory jurisdictions, including terms such as guardian, manager, administrator, which are inconsistently defined. Powers held under these appointments may also vary—noting that they are often specified by orders of a tribunal, within the scope of powers outlined in legislation; and cross-recognition is, at best, arbitrary.
10.36 Such inconsistency causes problems, in particular because the criteria and scope of state and territory appointments vary; and appointments may not be recognised in other jurisdictions.
10.37 Stakeholders supported a nationally consistent approach. National Disability Services, for example, said that unless there are ‘nationally consistent definitions, processes and safeguards around legal capacity assessment and decision support’, people with disability and their families can experience inconsistent and additional administrative hurdles across different jurisdictions or areas of their lives.
10.38 The Queenslanders with Disability Network (QDN) highlighted the opportunity the NDIS may provide to promote a more consistent approach to the appointment and powers of decision-makers, in order to prevent ‘confusion in the appointment of nominees with regard to disability supports for the NDIS’. That is, where the appointment of NDIS nominees may not correlate with existing guardianship arrangements at a state level, the ‘NDIS should be used as a catalyst for systemic change in this area’.
10.39 A related issue is the need to maximise cross-jurisdictional recognition of appointments and other decision-making arrangements. Stakeholders emphasised this need—especially as people commonly travel between jurisdictions or live in towns which straddle jurisdictional boundaries. QDN, for example, stated that:
One of the great advantages of the NDIS will be that it will allow people with disability more freedom to move interstate, without having to be concerned with different support systems across jurisdictions. It would be a terrible shame for such significant reforms to be undermined by other inter-jurisdictional hurdles such as legal capacity definitions.
10.40 Bruce Arnold and Dr Wendy Bonython submitted that the ‘rise of yet another class of substitute decision-makers or power-holders’ appointed under Commonwealth legislation may lead to problems if it ‘creates uncertainty about the validity of pre-emptive appointments made by people in anticipation of future loss of capacity, particularly if they lose capacity outside the jurisdiction the appointment was made in, or if they hold assets in multiple jurisdictions’.
10.41 There are some provisions permitting cross-jurisdictional recognition. However, these arrangements are not comprehensive and should be improved. For instance, while the Victorian legislation makes provision for the recognition of interstate guardianship and administration orders, Queensland has no corresponding law.
10.42 Stakeholders raised concerns about difficulties associated with obtaining consistent data in relation to the appointment of substitute decision-makers. They emphasised the need for improved data collection to facilitate comparisons across jurisdictions and inform policy development. Arnold and Bonython observed that,
although data is often collected by service providers, regulatory bodies and third parties that data is often held within institutional silos and is not readily accessible. That inaccessibility militates against informed policy-making.
10.43 State and territory review of guardianship and administration legislation may provide an opportunity to promote mechanisms for consistent and national data collection about supported and fully supported decision-making.
Office of the Public Advocate Systems Advocacy (Qld), ‘Autonomy and Decision-Making Support in Australia: A Targeted Overview of Guardianship Legislation’ (February 2014).
AGAC, Submission 51. See Ch 2.
Caxton Legal Centre, Submission 67. See also NSW Council for Intellectual Disability, Submission 131; Justice Connect and Seniors Rights Victoria, Submission 120.
The Office of the Public Advocate (SA) highlighted that ‘there are different rates of full (plenary) appointments as opposed to limited appointments (limited to one area of decision making) between jurisdictions, and different rates for the appointments of private guardians’: Office of the Public Advocate (SA), Submission 17.
Guardianship Act 1987 (NSW) s 4; NSW Trustee and Guardian Act 2009 (NSW) s 39; Guardianship and Administration Act 1990 (WA) s 4; Adult Guardianship Act 1988 (NT) s 4.
Guardianship and Administration Act 2000 (Qld) s 4; Guardianship and Administration Act 1995 (Tas) s 6.
Ibid ss 5–7, sch 1.
Guardianship and Management of Property Act 1991 (ACT) ss 4, 5A. See Ch 2.
Guardianship and Administration Act 1993 (SA) s 5.
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) chs 8–9.
See, eg, National Association of Community Legal Centres, Submission 127; F Beaupert, P Gooding and L Steele, Submission 123; Justice Connect and Seniors Rights Victoria, Submission 120; AGAC, Submission 91; National Seniors Australia, Submission 57.
United Nations Committee on the Rights of Persons with Disabilities, General Comment No 1 on Article 12 of the Convention—Equal Recognition before the Law, 2014.
AGAC, Submission 91.
See Chs 5 and 6.
B Arnold and W Bonython, Submission 38.
See, eg, National Seniors Australia, Submission 57; National Disability Services, Submission 49; Office of the Public Advocate (SA), Submission 17.
National Disability Services, Submission 49. With respect to the impact on movement interstate, see also: AFDS, Submission 47; Office of the Public Advocate (SA), Submission 17.
QDN, Submission 59.
See, eg, Office of the Public Advocate (SA), Submission 17.
QDN, Submission 59.
B Arnold and W Bonython, Submission 38.
Guardianship and Administration Act 1986 (Vic) pt 6A.
See, eg, B Arnold and W Bonython, Submission 38; Office of the Public Advocate (SA), Submission 17.
B Arnold and W Bonython, Submission 38.