“SHOULD GUARDIANSHIP LAWS BE ABOLISHED?”

“Most people in the community seek the support of others in making significant decisions about their lives. In modern society there is a high level of dependence on the expertise and knowledge of those with special qualifications, skills and talents, depending on the sorts of decisions that a person is faced with. In addition, people talk about their choices with others and few decisions, especially about important matters, are made in isolation.”

Most Australian guardianship legislation has been around since the 1980s and in some states, such as New South Wales, has not been updated. But Professor emeritus at Sydney University Law School Terry Carney says the first guardianship laws date back to the 1850s.

“It was terribly paternalistic and oppressive, and the sole objective was to conserve the person’s money for their inheritance,” he said.

For guardianship orders to be made it must be proved that the person doesn’t have capacity to make decisions and that there is a “strong, urgent and immediate” need to make the order, Carney says.

The United Nations has called for guardianship orders to be abolished. But La Trobe University disability researcher Professor Christine Bigby, who advocates for supported decision-making to be implemented across guardianship divisions has stated that this is an extreme stance.

“There is a counterargument that it is a safeguarding mechanism subject to review and scrutiny, and the action of the guardian is monitored,” she said.

Informal guardians, such as family members, aren’t subject to the same kind of scrutiny, Bigby says. Instead of presuming people don’t have capacity, this presumes people have support in place to enable capacity and help grow their independence.

NSW State Trustee and Guardian, which manages clients under both care and financial administration management, has 558 staff, 12,100 trustee clients and almost 3000 people under guardianship orders. The number of people represented by the public guardian has increased by more than 37% in the past five years.

As for guardianship offices, Victoria has 85 full-time equivalent staff managing 1792 clients, Queensland has 93 staff managing 3600 clients — an average of 37 clients each staff member — and Tasmania has just 9 staff managing 310 clients. These staff also work for the Office of the Public Advocate and have other responsibilities. They also work after hours to provide emergency and crisis services, as do volunteers for the public advocate.

The staff visit clients under guardianship orders to assess their well-being and living situations. While COVID-19 has disrupted in-person visits, limited staffing levels mean visiting everyone isn’t possible.

The NSW State Trustee and Guardian received 408 complaints last year , most dealing with a deceased estate, financial management and guardianship, and most of which were found to be unsubstantiated and finalised.

Nearly 20,000 issues were raised with the Queensland Public Guardian, most of which were closed within 90 days; 65 official complaints were logged, most of which were resolved with an explanation. Queensland is the first state to implement a consumer advocate to help manage the concerns.

In NSW a 2018 review of the Guardianship Act recommended widespread legislative reform, but just eight of the 35 recommendations were supported by the government in full. The Queensland Public Trustee was subject to a damning review by then public advocate Mary Burgess earlier this year, but has implemented just 11 of her report’s 32 recommendations. It rejected seven and plans to implement the other .

Society is judged by how it treats its most vulnerable. As this investigation has revealed, although guardianship and administration orders protect against abuse and harm there are major flaws in the way the system is run, sometimes putting those under administration in much worse situations than they were previously.

As chief executive officer for Aged and Disability Advocacy Australia Geoff Rowe told Crikey: “For a system that’s designed to protect people, at times it misses the mark and it misses the mark quite poorly.”