10.18 As discussed in Chapter 2, one of the key debates of central importance to this Inquiry concerns the extent to which art 12 of the CRPD permits ‘substitute’ or ‘fully supported’ decision-making.
10.19 A major implication 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.
10.20 However, regardless of the lack of consensus with respect to the status of guardianship laws in relation to the CRPD, 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 There should remain some room for fully supported decision-making. This conclusion is, in part, dictated by the reality that some people will always need decisions made for them.
10.22 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.
10.23 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.
10.24 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 ACT 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.
10.25 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.
10.26 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 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.
10.27 Appointments would be made by the VCAT and the range of decisions specified for which the person needs support, which, in principle, could 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.
10.28 Stakeholders in this Inquiry expressed support for continuing review of Australian guardianship laws, and this has also been called for by the UNCRPD.
10.29 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 proposal also highlights a number of particular considerations that should inform such review. These are briefly discussed below, with particular reference to guardianship laws.
Interaction with Commonwealth supporter and representative schemes
10.30 As discussed in Chapter 4, the ALRC proposes 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.
10.31 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.
10.32 Chapter 4 highlights some of the issues involved. The nature of these issues will vary depending on what approach is taken in Commonwealth laws. For example, if it is possible to have both a Commonwealth supporter or representative and a state or territory appointed decision-maker with power to make decisions in the same area, there may need to be a mechanism to resolve any conflict between the two.
10.33 If Commonwealth schemes provide for separate assessment of a person’s decision-making capabilities and support needs for Commonwealth purposes, even where a guardian or administrator has already been appointed, other interaction issues will arise.
10.34 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.
10.35 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.
10.36 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. These hurdles can be more than just a logistical burden. The lack of recognition of a supported decision-making arrangement across a jurisdictional boundary has the potential to undermine key relationships, support networks and the autonomy of people with disability.
10.37 The problem of inconsistency and its consequences was also noted by the Office of the Public Advocate (SA):
Because these appointments are made under different laws, with different definitions of incapacity, the rights of people to make decisions, or to be supported to make their own decisions, will depend on which state they live. For example, there are significant differences in the population rate of guardianship appointments between jurisdictions, reflecting different laws, and also different interpretation of laws by tribunals at different times depending on the prevailing rights-based or welfare-based view at the time. There can be considerable ‘bandwidth’ in how laws are read, and whether or not an appointment is necessary in the circumstances contributing to variation.
10.38 It suggested that a nationally consistent approach to mental incapacity would be helpful as
it would be an effective way to ensure that rights are upheld according to the UNCRPD across all jurisdictions. The law could not only define mental incapacity, but also define a range of measures for supporting a person’s incapacity that are recognised nationally.
10.39 National Seniors Australia said that a nationally consistent approach to capacity would ‘inform the initiation of further decision making supports’, but cautioned that:
A national approach to capacity should only take place following a review of Guardianship and Administration Acts and precedent in each state and territory. This will ensure that an appropriate mechanism for measuring decision making capacity will be evidence-based, supportive of individual circumstances and secure against forms of elder abuse or exploitation of power of attorney status.
10.40 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’.
10.41 A related issue is the need to maximise cross-jurisdictional recognition of appointments and other decision-making arrangements.
10.42 A number of stakeholders emphasised the need for cross-jurisdictional recognition of appointments—especially as people commonly travel between jurisdictions or live in towns which straddle jurisdictional boundaries. The 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.
10.43 Academics 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.
In the event that this occurs, and an instrument is not recognised, the default is appointment of a guardian by the tribunal under the relevant jurisdictions’ guardianship frameworks—a process which contributes a significant burden to all involved, including family members, healthcare and social workers, and the tribunal itself.
10.44 There are some provisions permitting cross-jurisdictional recognition. However, these arrangements are not comprehensive and should be improved. For example, while the Victorian legislation makes provision for the recognition of interstate guardianship and administration orders, Queensland has no corresponding law.
10.45 Stakeholders raised concerns about difficulties associated with obtaining consistent data in relation to the appointment of substitute decision-makers. A range of stakeholders 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.
10.46 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).
Australian Guardianship and Administration Council, Submission 51.
Caxton Legal Centre, Submission 67.
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 1986 (Vic) s 4, (WA) s 6.
Guardianship and Administration Act 2000 (Qld) ss 5–7, sch 1.
Guardianship and Management of Property Act 1991 (ACT) ss 4, 5A.
Guardianship and Administration Act 1993 (SA) s 5.
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) chs 8–9.
See, eg, National Seniors Australia, Submission 57.
United Nations Committee on the Rights of Persons with Disabilities, General Comment No 1 (2014) on Article 12 of the Convention—Equal Recognition before the Law.
See Chs 5 and 6.
B Arnold and Dr W Bonython, Submission 38.
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.
Office of the Public Advocate (SA), Submission 17. The submission includes a state-by-state comparison of the rate of public guardianship as at 30 June 2013, for states in which data could be obtained from online annual reports.
Ibid. The OPA (SA) also noted that it would aid monitoring and data collection in implementing the National Disability Strategy’s area of policy action in rights protection and that there ‘could be meaningful comparisons across jurisdictions’.
National Seniors Australia, Submission 57.
QDN, Submission 59.
See, eg, Office of the Public Advocate (SA), Submission 17.
QDN, Submission 59.
B Arnold and Dr W Bonython, Submission 38.
Guardianship and Administration Act 1986 (Vic) pt 6A.
See, eg, B Arnold and Dr W Bonython, Submission 38; Office of the Public Advocate (SA), Submission 17.
B Arnold and Dr W Bonython, Submission 38.