New Guardian and Administration Act (2019)

This session is part of the Advocacy Sector Conversations Forum series held online on 14 October 2020.


Overview

The new Guardianship and Administration Act 2019 came into effect on 1 March 2020. The new Act includes a presumption that a person has the capacity to make decisions unless evidence is provided otherwise and recognises that a person also has decision-making capacity if they can make decisions with support. This is an important shift away from the best interest approach to one where it is acknowledged that decisions should reflect the person’s will and preferences, unless it would cause serious harm to the person.

Join Dr Norman Chia, an Advocate Guardian at the Office of the Public advocate, as he step us through the newly created Supported Decision Maker roles under the Act.

 

 

Contact the Office of the Public Advocate (OPA) Advice Service
T:: 1300 309 377

Resources mentioned in this presentation can be found at the bottom of this post.

 

Audio & transcript

 

MELISSA HALE:
Good morning, everyone. Welcome to the second session of the October 2020 advocacy sector conversation series. My name is Melissa Hale and I’m the coordinator of the Disability Advocacy Resource Unit.

Before I begin, I would like to acknowledge the traditional owners of the land on which we meet and pay my respect to elders past, present and emerging.

Once again, we are delivering these forums online in this new format due to the new normal we find ourselves in due to COVID19. We are pleased to be able to still bring the advocacy sector conversation to you safely, and online. Like many of you, we are still seeing some unexpected benefits in this type of program delivery and we will be coming back to you all some time soon to get your feedback on what you like and dislike about this format. So we can continually improve and provide the best experience we can for you. So please let us know what you think.

You will note we have Auslan interpreters today and we also have captioning that you can access. So if you go into the chat box you will see a link that you can click to access the closed captioning in a separate browser.

We encourage your active participation today. Please type your question in the Q&A box, not the chat box, and at the end of the session I will be facilitating a Q&A session with our presenter. I hope you have settled in comfortably and ready for a great session ahead.

You may already know about the updated changes to the Guardianship and Administration Act that came into effect on 1 March 2020. The new Act includes a presumption that a person has the capacity to make decisions, unless evidence is provided otherwise, and recognises that a person also has decision-making capacity if they can make decisions with support. This is an important shift away from the best interest approach, to one where it is acknowledged that decisions should reflect a person’s will and preferences unless it would cause serious harm to the person.

Dr Norman Chia is an advocate Guardian of the Office of the Public Advocate and he will step us through the newly created supported decision maker role under the Act. Please welcome Dr Norman Chia.

NORMAN CHIA:
Good morning, everyone, and thank you very much for asking me to present and also for attending this live webinar as well. I hope everyone can hear me. I will be going through this presentation and because I can’t actually see anyone I don’t really know who’s participating, I don’t know much about your individual backgrounds.

I’m going to have to go on the assumption that perhaps some of you aren’t terribly familiar with guardianship or administration or with the work of the Office of the Public Advocate.  So I’m going to go perhaps a little bit slower just to make sure that people don’t feel overwhelmed or they don’t miss out on information because I presumed that they already know about guardianship or the Public Advocate.

If you already are very familiar with our office and guardianship and administration, I do apologise but I just want to make sure that I don’t skip anything that people don’t already know.

So  and being a guardian, I’m going to concentrate in this presentation mostly on the guardianship aspect of the new legislation. I do have a couple of slides about administration but if you’re seeking more detailed information, then State Trustees, as an example, is a possible source of information from its website. Or you can call them for advice as well.

So without further ado and because I’m mindful of the time, I want to make sure that there’s enough time for all the questions. I’m going to start with our presentation.

As Melissa did before, as well, I would like to acknowledge that I’m presenting to you from the land of the Indigenous participants and I would like to acknowledge the Aboriginal communities, their rich culture and I would like to pay respects to elders past, present and emerging and also noting that sovereignty was never ceded.

So firstly, just some quick information about the Office of the Public Advocate, if you’re not already familiar with it. A very brief explanation about our role.

It is to promote the human rights of persons over 18 with a disability and you will note that I’ve put a star next to the 18. Disability under the Guardianship and Administration Act is defined as one of … [audio cuts out)

If you’re still with me, if you’re still recording, I’m going to just continue on with my presentation until someone confirms with me that the webinar…

MELISSA HALE:
Right, everyone, 2020 strikes again. So we are having a few technical issues. We’ve asked the presenter to disconnect and reconnect again. So please bear with us, stay on the line. We’ll be back soon. Thank you.

NORMAN CHIA:
We’re back. I’m sorry about that. I think I broke the computer. I broke the Internet. And I do apologise for this. I’m just mindful that I think we’ve lost a bit of time now as well so hopefully we’ll get back on track and there won’t be any problems with my connection. If I do, I think I just need to disappear from the video and just talk which will hopefully stabilise things.

But I just have to take a couple of slides back because I think I was pressing the button not knowing what was going on. So we’ve skipped a couple of slides and I will quickly go back.

OK, so we’re back here and I might need to just speed things up a little bit and make sure that I focus, pay more attention to the really important slides for you as well.

So as I said before, there’s a star over the 18 because the Public Advocate and guardianship and administration only apply to people who are adults, so they must be over 18.

Having said that, I read recently, that our office, the Public Advocate, recently advocated, apparently quite strongly, for a young teenager. So we were involved in negotiations, I think at quite a fairly high level, as well, with the NDIA and possibly, I think, DHHS and that was obviously for someone who was under 18 years of age.

So I’ve put an asterisk there to say that even though guardianship and administration only applies to legal adults, there seemed to be exceptions and instances, I will probably say not very often, though, where our office might still advocate for people under 18 as well.

The core function of our office is to protect people with a disability from abuse, neglect, and exploitation.

So there are various pieces of legislation which are relevant when one talks about guardianship or administration and I will just quickly go through these here. I think all of this information will be kept and recorded on the website so you can access everything together, including not only this presentation but also this recorded webinar, hopefully without the interruptions as well.

The main piece of legislation is the Guardianship and Administration Act 2019. Do bear in mind that the Guardianship and Administration Act, which I will just call GAA from now on because it’s such a long title, was originally created in 1986 and so there are two versions of it which are still in effect at the moment but most applications for guardianship or administration now, because they’re after 1 March, are all made under the new Act from 2019.

So the new Act can enable guardianship order or an administration order to be made but also something now called a supportive guardianship or a supportive administration order.

I will talk further about those in later slides. There are usual provisions and clauses around special medical procedures which are defined as I’ve written there, in section 140 of the GAA 2019.

Special medical procedure is something that noone other than VCAT can make a decision on. It is defined as a medical procedure that is reasonably likely or has the intention of leading someone to become infertile, termination of pregnancy, transplant of tissue or an organ or there are other specific medical treatments, procedures as defined in the Act.

The Powers of Attorney Act is also something relevant to VCAT, which is the tribunal, and authority that makes guardianship orders. It can make decisions around an enduring power of attorney, whether it continues whether it’s suspended or revoked and similarly decisions about supportive power of attorney powers as well.

And when we talk about a person’s lifestyle or personal decisions, that can also encompass medical treatment  they receive and all of those are defined they’re covered under the medical treatment planning and decisions Act 2019 including whether a person or how a person makes an advance care directive, being either an instructional directive or a values directive, which helps tell people, like a general practitioner or a doctor, what that person might like or would have liked in terms of any medical treatment for them if and when they lose decision-making capacity and they can’t make an informed decision or communicate that anymore.

So as Melissa pointed out, before the GAA came into effect on 1 March this year, guardianship orders beforehand, so if it was made before 1 March, many of them are still in effect now and I’m still guardian for lots of people under the old act from 1986.

I need to make my decisions for those orders according to what I believe is in the person’s ‘best interests’, what is least restrictive for them and what tries to give effect to their express wish.

I’ve put stars next to the words “least restrictive” and “express wish” because those criteria, those factors which help me make a decision, they are qualified with words or phrases such as “if possible”, or “wherever possible” whereas “best interests” does not have any qualification and we take that to mean that best interests is the main or possibly the overriding factor which we need to consider when we make a decision for someone if the order was made before 1 March this year.

All orders, be it guardian ship or administration made after 1 March, have a significant shift in paradigm, as Melissa pointed out before. It’s got a much larger human rights focus.

So it moves away from what’s in the person’s ‘best interests’, or what we think is best for them, in what is really quite a paternalistic view, to what is the person’s will and preferences and making that happen.

So supported decision making, they occur via appointments by VCAT. You can also have a supportive guardian or a supportive administrator and the obligation now is to support the person to make his or her own decision.

That’s put in this diagram form from someone called Michelle Browning who works heavily in supported decision making, and what she’s drawn here is a contrast between the old Guardianship and Administration Act from 1986, with the new Guardianship and Administration Act and you can see here she’s used the diagram.

It’s supposed to represent, I think, the Copernican system of the universe where the old model of thinking was that the sun revolves around the Earth and that is substituted decision making, so the old Guardianship and Administration Act, whereas the new Guardianship and Administration Act has it where we, the Earth revolves around the sun and the sun is really kind of indicative and representative of the represented person.

So all the supports practicable and appropriate supports should be made available to the person to help him or her make a decision for themselves, really, rather than having someone step in and take place to make a decision for that person, which is the old model of thinking and the old style of guardianship and decision making.

So the primary object of the GAA 2019 is to help align guardianship legislation with the United Nations Convention on the Rights of Persons with Disabilities and to recognise the need to support people and have a greater say and involvement in their lives.

When VCAT makes an order, if it’s guardianship or administration, then VCAT will obviously need to, and it can, set safeguards and limits on the powers, still to make sure that the guardianship order, for instance, isn’t arbitrary, or that it doesn’t intrude or impinge on a person’s human rights and freedom too much.

It needs to regularly review the order and can provide guidance or advice to the guardian or administrate or, if they’re seeking some clarification or if they would like a bit of direction about how they might wish to proceed.

VCAT, importantly, though, doesn’t actually make decisions. The main decision for VCAT is to determine whether a person needs someone to help make decisions for them. VCAT itself doesn’t make decisions and say Mr Brown, you will be under a guardianship order and we decide that you will live in ABC, for instance.

VCAT’s role is primarily to decide whether Mr Brown needs someone, someone else, to make that decision for him or to help support him to make that decision.

Decision-making capacity is specifically defined in the GAA 2019 and where it says S5 in the subject, it means Section 5. The definition is now brought in alignment with the definition from the Medical Treatment Planning and Decisions Act and the Powers of Attorney Act.

So they’re all consistent now but basically the decision-making capacity is the ability for a person to understand information, to be able to hold and retain that information to the extent necessary, to make a decision, to use it, to synthesise it, to turn the information around, to be able to then arrive at a decision that the person can then communicate in their own way, whether it’s by verbally, by speech, by gesture, writing it down, or by any other means as well.

So an important feature of the new guardianship legislation is that a person is presumed to have decision-making capacity unless there is evidence to the contrary.

And a person is taken to understand the information relevant to the decision if the person can understand it in a way that is appropriate to the person’s circumstances as well, whether that means using modified language, visual aids, speech boards, pictures, or even little models, for instance, to help give a concrete explanation of the information.

This particular section here, Section 5 Subsection 4, talks more about how a person might help to determine whether someone has decisionmaking capacity. And it says here regard must be had to the following:

“…a person may have decision-making capacity in relation to some matters and not others. “

So people might have a good grasp of financial information but they might not be able to understand complex healthcare information about medical procedures.

If a person doesn’t have decision-making capacity in relation to one thing, it may be temporary as well. So it can be just a temporary loss because of a head trauma but it might not necessarily be long lasting or permanent.

It shouldn’t be assumed that a person doesn’t have decision-making capacity because they simply make what others might believe to be unwise or unreasonable decisions. People make them commonly throughout the day or throughout the week as well, but it doesn’t necessarily mean that a person has lost decision-making capacity in its entirety.

And importantly, a person has decision-making capacity in relation to a matter if it’s possible for the person to make the decision with practicable and appropriate support. And those words are highlighted because they’re really the key things that we, as guardians, and also support people, need to think about how they can provide that person with practicable and appropriate support and what kind of forms that support can take.

In that sense, one needs to be quite creative and inventive and very flexible and perhaps, you know, bring new innovations in terms of how information can be conveyed to someone else.

So this particular section is taken straight out of the Guardianship and Administration Act but it just gives some examples of how  of practicable and appropriate supports. So it doesn’t necessarily have to be verbal information. It doesn’t have to be limited to something that’s written down.

As I said before, it can be the use of models and figurines to actually explain a situation, it could be pictures.  It could be actually taking someone to see something in person as well, to see, for instance, a specialist disability accommodation house so that they can see, well, this is a type of house where you might be able to live or that might be available to you.

So decision-making capacity, I think, is relevant and important all the time. I think it’s when VCAT thinks about whether someone needs a guardian or a supportive guardian. It’s also when I, as a guardian, when I’m making decisions for someone, how much do I need to be involved, how much support do I need to give the person? Has the person already got all the information or enough information to be able to make a decision for themselves?
So this section, Section 8 of the Guardianship and Administration Act is very important because it talks about how a guardian needs to approach or an administrator, as well, needs to approach their work and how they can fulfil and complete their duties for someone who is under a guardianship order.

Some of this does repeat itself with some of the other sections and the other legislation but a person with a disability who requires support to make decisions should be provided with practicable and appropriate support to enable that person, as far as practicable in the circumstances, to make and participate in decisions affecting the person and to express the person’s will and preferences, and to develop the person’s decisionmaking capacity.

During this presentation, by the way, sorry, if I refer to a guardian, then I will use that term interchangeably with an administrator as well, OK? It’s just a bit easier for me just to say guardian rather than guardian and/or administrator.

Further to the previous slide, it’s very important subsection (b) the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person.

What that basically means is if I am guardian for a person and he is saying he wants XYZ, then I need to pursue the possibility of XYZ, not ABC, not DEF, not something else, with exception. In the first instance I need to do XYZ because that is the person’s will and preference as long as I’m comfortable and confident that it is a genuine reflection of what that person really wants.

So just briefly, what is a guardian? A guardian is someone who is appointed by VCAT to make decisions about a person’s personal matters. What we used to call lifestyle issues.

Most of that slide is blank. I’ll just tell you some things that a guardian is not. And I say this only because a lot of people, whether it’s family members or people who work within the disability sector, they often sometimes, unfortunately, have a bit of a misconstrued idea or understanding of what a guardian does.

A guardian is not going to be the saviour or the magical cure or the panacea for all of the issues or any problems. The role of the guardian traditionally was a substituted decisionmaker. The role of the guardian now, under the legislation, is a supported decisionmaker but the common element is to make decisions.

It’s not to case manage, it’s not to find supports, it’s not to drive the person around, take them shopping, take them out into the community, it’s not to assist them in interviews, the function, the principal function is to make decisions.

My title, though, as you might have seen from the start of the presentation, is not just guardian, but advocate guardian, and so there is an advocacy component to my role and that more accurately encompasses things like perhaps attending NDIS planning meetings, helping to find supports if there is noone else available to do so, such as family members, friends, a case manager, or a social worker. But principal  the principal function of a guardian is to make decisions.

Similarly, the principal role of an administrator is to make decisions about a person’s finances or their legal affairs, and I’ve got various examples of what decisions that can be.

So, before VCAT makes a guardianship appointment or an administration for anyone, it needs to be satisfied of all of these criteria.

So first of all, the person has to have a disability in the meaning of the Act and that disability must mean that the person doesn’t have decision-making capacity about either their personal matters, their lifestyle, or their financial matters.

Secondly, the person actually needs to have  needs a guardian or an administrator. Just because someone has a disability or they lack decisionmaking capacity, that doesn’t necessarily mean that there is a decision that needs to be made.  If things are going very well and there’s no need to change something or add or remove something, then I don’t see why the person would need a supported decisionmaker to help them make a decision. They should be able to do that by themselves without being under a legal order.

Thirdly, the VCAT also needs to be satisfied that the order will promote the person’s personal and social wellbeing.

Examples of personal matters. As a guardian, some things which I can help make decisions around where a person lives, what services they can use and that can include how they access the NDIS or how they use their plan. Who gets to see a represented person, or who the represented person can actually see as well. What kind of employment and training they do, what medical treatment they receive and I specifically highlighted here under Section 40 the power to bring and defend legal action or legal proceedings on behalf of the person as well.

I specifically mention that because that is new. That wasn’t included in the old Guardianship and Administration Act.

The last thing that I’ve mentioned there is daily living issues such as a person’s diet or dress. In all my time as a guardian, and even though the new Guardianship and Administration Act is still quite relatively young, I’ve never seen those particular issues included in a guardianship order where a guardian is  has the authority to support a person to make decisions about how they dress or what they eat.

I think that reflects that the VCAT is very mindful that it is a very prohibitive and very restrictive order to include that and I think that’s why I’ve never seen it. None of my colleagues, to the best of my knowledge, has ever seen that included in an authority to date and I would hope that it would be a redundant authority and never really needed.

Examples of financial matters, well, it’s about paying a person’s bills, direct debits, making sure their rent is paid on time, making sure that the person has access to money and funds when they need it for their own personal spend, to go shopping, to buy groceries, to buy clothes, to buy things that they like as well but to do so in a prudent manner, to make sure that the person isn’t going to be destitute or going to run out of money but that they have some financial security for their future as well. It can also include selling a person’s home if, for instance, the person enters residential aged care and needs to be able to fund that through a residential accommodation deposit.

This is just some information about the application process. You will note that there is one pathway which can lead you to my office, the Public Advocate, to get advice.

If you’re ever in doubt and you’re involved in potentially submitting an application to VCAT, I always recommend that you contact our office, our office’s advice service to talk about the application, why it’s needed and whether there are any less restrictive alternatives that you can consider.

If and when an application is made to VCAT, it doesn’t necessarily mean that order will be made. It could be that VCAT refers the matter to our office for an investigation where someone from the dedicated investigations team will look more closely into the matter and answer specific questions such as does the person really need a guardian or an administrator or does it have to be an external office or could it perhaps be a family member or a friend?

Guardianship orders normally last for one year. There are exceptions to that. There are shortterm orders which are less than a year, perhaps six months. There are some instances where guardianship orders are made for three years because the tribunal VCAT wishes to see, as much as possible, some stability in the person’s life and in their daytoday orders and their affairs. They’re more the exception than the rule.

Administration orders normally are made for three years but there are also exceptions where there can be shorter administration orders as well.

I haven’t seen any supportive guardianship or administration orders to date, so I’m afraid I don’t have any information about how long they last.

At any time, anyone, including a guardian or an administrator, can go back to VCAT early to seek reassessment of the order if they don’t believe it’s still needed anymore or if they don’t want it as well. VCAT will make the decision then about whether the order is cancelled, or whether it continues.

So, this Section 9, this talks further about the decisionmaking principles and how, I for instance, as a guardian, need to make decisions, and this, along with Section 8, is one of the key parts of this new legislation.

So the person for whom I’m guardian, I should give all practicable and appropriate effect to the represented person’s will and preference. That’s assuming I know what the person’s will and preferences are and it’s incumbent upon me as guardian to spend enough time with the person to fully and truly understand what the person’s will and preferences are.

If I’m unable to actually determine with confidence the person’s will and preferences, I need to then see if I can make a decision that I think most closely matches that person’s will and preferences and that would be based on all information that I receive from the person themselves but from any family members, any friends, any services, professional services that are involved with them.

And if it means that I need to go and do a lot of investigative work to really get to know the person and look into their background, then that is what is required from me in order to be able to try to understand and fully appreciate their will and preferences so that I can then make a decision about how to support them best.

If it turns out that after all of that I can’t actually understand or ascertain the person’s will and preferences then I can make a decision that I think promotes their personal and social wellbeing and that basically means what is best for them and what is going to protect them and ensure that they’re not subject to further any distress, any harm or any suffering.

One thing that’s important is that I need to also recognise if a person has a companion animal under subsection (d). This is new, this hasn’t been included in previous legislation. It’s not a trivial matter. It’s really important to see whether I can still maintain a relationship between a person and their companion animal as much as possible.

Now, I did mention before that there is an exception when I don’t have to follow the person’s will and preferences and I don’t have to do what they are wanting and that is if to do so would result in harm or serious harm to that person. That is the only instance, and the only time when I can justifiably override a person’s will and preferences.

Will and preferences isn’t defined. So it’s partially subjective. One generally thinks of a person’s will as something a person wants whereas preferences might be more something that a person tends to like something over something else. But it’s rather unhelpfully not defined in legislation so it really is up to the individual person, the guardian assisting, to try to understand what is the person’s will and what is the person’s preferences as well.

They can change over time and depending on the person’s individual circumstances and depending on the information that they have as well, they might be able to process that and say, well, given the new information that you’ve  that is available to me, my will is no longer to do this but to do something else instead.

Will and preferences is sometimes a bit difficult to ascertain when the person fluctuates in their view. The guardian will need to be particularly creative and flexible and inventive to see  to try to ascertain and establish what seems to be the more likely or reasonable reflection of the person’s will and preferences.

Do I need to speak to a certain person or communicate with someone at different times of the day in a different setting, in a different manner. These are some of the things that we need to consider as guardians when we’re trying to ascertain the person’s will and preferences.

I’m just mindful of the time because we had the technical difficulties before. We might be able to go over 12 but if we need to hurry up along so we get everyone’s questions, I’m happy to do that as well. So if I do go through the slides a little bit quicker than normal, I’m sorry about that. Again, it’s my fault with the technical difficulties as well.

The represented person’s personal and social wellbeing is promoted by just recognising the inherent dignity of the person, respecting their individuality, having regard to their existing supportive relationships, religion, values and cultural and linguistic environment as well.

Serious harm is like will and preferences, not defined in the legislation. So it is subjective assessment and analysis by the person. What I consider to be serious harm for a person might not necessarily be what my colleagues think to be serious harm so there are different thresholds there.

But the thrust of this provision is to make sure that the person is not going to be unnecessarily and continually exposed to any kind of danger or risk to themselves.

We need to take into account the fact that, you know, serious harm could be moving someone, for instance, out of their home that is squalored, ported with wet and dry material and unhygienic. Moving them to a new residents where they’re disorientated, where they’re likely to be aggressive, where they’re going to be plainly very unhappy and very upset.  That can also represent serious harm to the person as well.

So we need to carefully balance the risks to the person, depending on their situation and their circumstances.

A supportive guardian is someone who can help to support a person to make decisions as long as the person agrees to it. So the first point there is that the person must consent to VCAT making the order and that means that the person has to understand what a supportive guardian or a supportive administrator does as well.

There are limits on what a supportive guardian or administrator can do. They’re outlined here. They have the power to access, collect or obtain information or help the supported person to get that information. They can help  they have the power to communicate certain information about the supported person, to communicate decisions that are made by the supported person or to help the supported person to communicate the decisions themselves, and to take any reasonable action or do anything that is reasonably necessary to give effect to  that should be to certain decisions, pardon me. There’s a typo there.

They don’t have the power to actually make the decision or override the person’s will and preferences and that is the key difference between a guardian and a supportive guardian.

Just like with the guardian, a supportive guardian has to act diligently and honestly, in good faith. Competently as well but exercising reasonable skill and care, not try to exploit the position to the detriment of the supported person, and not act if there’s a conflict of interest as well.

They also have to discuss anything relating to a supported decision with the person in a way that is appropriate to the supported person’s needs. They obviously, it goes without saying, they shouldn’t assist the person to conduct any illegal activity and they can’t, they’re not supposed to, coerce, intimidate or somehow influence the supported person into one particular course of action over another.

So, with that said, the final slide here gives an indication about what kind of resources are available on our website.

I did refer before to our office’s advice service. I’m sometimes on the advice service so the guardians sometimes help to take calls and give advice. It’s an invaluable service if you’re ever in doubt or just seeking information or some clarification about the legislation or about whether a guardian or an administrator is needed.

And you will find on our website there are lots of other online resources which, I think, will be very helpful to you as well.

I’m sorry if I’ve waffled on or skipped through slides very quickly but I’m just mindful that some people need to go at 12 and there may be lots of questions. So I’m happy to answer anyone’s questions right now.

MELISSA HALE:
Thank you very much, Norman. It was really useful. I think before we go to questions the first thing I’d like to highlight is the recording of this session and the slides will be available on the DARU website after this session so you can look back on this later.

We’ve got a lot of questions and I will try my best to get through some of them but we are going to run a little bit over and we won’t get through all of them. So what I might do is collate all the questions and go back to you at a later date, Norman, if you can help me answer them and we can collate some of the answers on a resource page later.

So we will go through some now and we will try to finish on time. So the first question is…

QUESTION:
Does a person who has a supported decision-making order qualify them to be a plan nominee under the NDIS?

NORMAN CHIA:
Not necessarily. So as a guardian, I think the NDIA regards guardians different to a plan nominee. There are two separate categories there.

And so I’m guardian for a person whose mother is still her plan nominee as well. So she has both a plan nominee and a guardian.

I think the NDIS, if there is no plan nominee, such as a family member or a trusted friend, the NDIA will prefer that the guardian be considered or take the role of a plan nominee but it’s not to automatically say that the person will be the plan nominee. I think that the person themselves should still have some say and role in saying whether they want someone to be a plan nominee or not.

MELISSA HALE:
Thank you. Can I have the next question, please…

QUESTION:
As the existing orders under the 1986 Act need to be updated, will they be transitioned to the new Act?

NORMAN CHIA:
Yes, they definitely will. So I’m still guardian for lots of people under the 1986 Act. When the order is reassessed, and if a new order is made, it will be made then under the new Act according to the 2019 Act.

MELISSA HALE:
Next one, this one is a long one.

QUESTION:
There are a lot of people living in supported accommodation housing and do not have plan nominees. Some of these people have significant and complex disability. How do these people access appropriate decisionmaking support when in these situations, to ensure the decision is represented?

NORMAN CHIA:
That’s a very difficult question to answer. I think if and wherever possible, if they can be assisted by an individual advocacy service, VALID, for instance, or Scope, there are lots of others, that might be perhaps one of the most effective ways.

Sometimes that simply isn’t possible and sometimes there aren’t anyone else who can be effectively fulfil the role of a plan nominee.

I’m reluctant to say even though we are, commonly, guardians I don’t think are not necessarily the solution there because when you think about it, you need to go through the process of a guardianship application, it has to go to a hearing, that can take time. If a guardianship order is made, it can still take time for a guardian to be appointed.

Let’s say it’s me, it takes time for me to get to know the person then and understand what they want, their needs are, and to be able to fairly and accurately and effectively as well, put them forwards to the NDIA in a planning meeting as well. That might be disadvantageous because it might take three, four, five months in which time the person will fall behind.

I don’t know whether I can answer that question to anyone’s satisfaction. There simply might be a dearth of suitable workers and support people to help people access the NDIS and really get their views and their needs across to meet all their needs.

MELISSA HALE:
Thank you, I think we’ll go one more question and then we will wrap up.

QUESTION:
Previously independent advocacy services have referred issues to OPA as a higher authority with a mandated power to protect and represent a person with a disability. Under the new Act, is this still the case?

NORMAN CHIA:
I don’t think the new Act really talks much about advocacy. But certainly from our office’s point of view, we still accept referrals directly from advocacy services with direct requests for advocacy.

Sometimes they are put through to our office via VCAT. Sometimes they can be made directly to our office, just as normal procedure as well. But the new Act doesn’t prohibit or stop that from happening, so that hasn’t really changed.

MELISSA HALE:
Well, I think that’s all we’ve got time for today. We’ve got a list of other questions that I would love to talk to you about and be able to publish with our resources as well.

So thank you very much, Norman, for your time and sharing your expertise today with us all. We truly do look forward to working with you and OPA more closely as a sector as time goes on to get the best outcome possible for people with disabilities and to make sure that they are supported to make decisions as independently as possible.

NORMAN CHIA:
Yes, no worries. Thank you very much for having me today, and I’m happy to answer questions afterwards.

MELISSA HALE:
Thank you. So, everybody, we’ve come to a close to the second session of an exciting series this week. I would like to thank the Office of the Public Advocate and Dr Norman Chia for his time to bring this presentation to you today and for the great work that is happening in this space.

Thank you to the Auslan interpreters and captioners for their hard work today. Thank you to Show Division for bringing this production to you today.

Please stay safe, wear your mask, wash those hands and stay home! See you next time.


Question time was cut short due to the technical issues causing delay at the beginning. Norman kindly took the questions away and provided responses after the webinar. Here’s the extra Q&A:

QUESTION:
Do you have any ideas about how independent funded advocacy services and OPA can work together effectively to advance the cause of people with a disability as this is a common aim for both of us.

NORMAN CHIA:
Sorry! I can’t answer this one. I’m ‘just’ a ‘humble’ guardian working at the coalface of guardianship. I’ll have to leave this to Senior Management to consider and possibly reach out with suggestions, as I’m ‘just’ a diligent worker bee!

QUSTION:
is there still such a thing as “community guardians”?

NORMAN CHIA:
This is actually slightly tricky. The simple answer is: yes. The expanded answer is: yes, at this stage, but I think the program was being, or is still being, reviewed, so I don’t know about its future. Community guardians would need to fulfil their obligations and execute their duties exactly like OPA guardians, as they receive delegation from the Public Advocate.

Aside from OPA guardians, or community guardians, there are also ‘private guardians’ – perhaps family members, close friends or carers, who can also be appointed by VCAT to be a guardian. A private guardian is subject to the exact same provisions and responsibilities as an OPA guardian – that is, they have to carry out their duties, especially in accordance with sections 8, 9 and 38 of the Guardianship and Administration Act 2019.

QUSTION:
Where can unofficial decision supporters i.e. family members, go to learn skills in facilitating will and preference?

NORMAN CHIA:
Not sure if this question actually meant: ascertaining and determining a person’s will and preferences, or actually doing or giving effect to a person’s will and preferences(?). I’m going to presume the former.

I don’t know whether there are specific ‘courses’ or programs where anyone can learn how to do this. Even we OPA guardians need to learn this somewhere – it just comes from changing your mindset, work practices, approach and generally being ‘inventive’ and creative in how to communicate with someone. It’s like an interview, or series of interviews, where you need to find and use the appropriate way to communicate and get responses from the person. Note it might take more than just one time to ask the questions.

QUSTION:
How does a person become a Guardian? Who appoints them and oversees their work?

NORMAN CHIA:
There’s no defined career path to become a guardian. OPA guardians come from diverse backgrounds: disability/social services, allied health, case management, legal services, NDIA, or investigations, like me. So there’s no ‘one’ background that fits all. A knowledge of the human services/disability sector is required, according to the job advertisements (I think), but the main attribute is the desire to represent and protect people with a disability and to promote and advocate for their rights, with a good and demonstrated ability to make reasonable decisions.

The Public Advocate delegates authority to guardians – obviously if and when they’re selected by the interview panel at the time and then subject to a probation period.

VCAT doesn’t necessarily oversee a guardian’s work, in that VCAT doesn’t tell me what decision to make or how to advocate for a person. Our actions and decisions are bound and determined by relevant legislation (Guardianship and Administration Act 1986/2019, the Medical Treatment Planning and Decisions Act 2016, the Charter of Human Rights and Responsibilities Act 2006, and others, as well as internal policies, protocols, position statements, etc.) Internally, Team Leaders and then Managers oversee our decisions and work, which can include formal review of any decision. Anything contentious or directly going against a represented person’s will and preferences, or against strong recommendations of a hospital care-team, for instance, needs to be discussed with the guardian’s Team Leader and/or Manager for checking.

QUESTION:
I’m a bit confused between Supportive Attorney and Supp G & A. Could you please clarify how the Supportive Attorney is different?

NORMAN CHIA:
Supportive guardian or supportive administrator: while the proposed represented person has to agree to have either a supportive guardian or supportive administrator, VCAT appoints the supportive guardian/administrator via a legal order. The proposed represented person has been assessed as lacking decision-making capacity because of a confirmed disability.

A supportive attorney is selected and agreed to by the person, themselves, while they still have decision-making capacity – that is, the person appoints the supportive attorney. There are strict witnessing requirements. There are also limits on what a supportive attorney can and cannot do (e.g. NO medical-treatment decisions):
https://www.publicadvocate.vic.gov.au/power-of-attorney/supportive-attorney-appointments

QUSTION:
Can you just clarify again please that an Order made under the old version of the GAA means that the Guardian will be acting as a substiture decision maker but if the Order was made under the new legislation, they will be acting from a supported decision making perspective/model.

NORMAN CHIA:
If the guardianship order was made before 1 March 2020, it’s made under the ‘old’ Guardianship and Administration Act 1986. The guardian acts as a substitute decision maker and makes decisions according to the represented person’s best interests, what is least restrictive of the represented person’s freedoms and rights, and to give effect to the represented person’s wishes, wherever possible.

If the guardianship order is made from, and including, 1 March 2020 onwards, it’s under the ‘new’  (current) Guardianship and Administration Act 2019, so the guardian is a supported decision maker and acts on the represented person’s will and preferences, but with possible exception.

QUESTION:
supportive guardianship sounds a bit like what advocates do. is this a fair comment?

NORMAN CHIA:
Without having worked as an advocate, yes, I’d say it’s a fair comment. Check section 90(1) of the Guardianship and Administration Act 2019 for the range of powers of a supportive guardian/administrator:
http://www5.austlii.edu.au/au/legis/vic/num_act/gaaa201913o2019350/

QUESTION:
Wonderful to see the shift from best interests to will and preferences. You have mentioned time, creativity, innovation. Can you give an example/s of how the current legislation has changed you or your colleagues day to day practice?

NORMAN CHIA:
Some examples in abridged form, but by no means exhaustive, especially because COVID-19 has thrown so many spanners into the works by preventing many face-to-face meetings/visits:

Fundamental shift away from the mentality of ‘I’m going to decide for you’ to ‘I’m here to support you make your own decision, and I’ll only make the decision, if your decision is going to expose you to serious harm’.

Getting to know, and then be comfortable to confirm, a represented person’s will and preferences might take several meetings/phone calls in different settings, with different people involved in the conversation (if any), at different times of the day, with the use of props/pictures/visual aids, an independent and trained clinician (e.g. Speech Therapist).
Advocacy is really unchanged, as this has always been a key component of our office’s work, especially in ensuring the represented person’s rights aren’t just ignored and even if this goes against the medical advice of, say, a care-team.
QUESTION:
I have an adult daughter who is 28years old.  I have not had any issues acting on her behalf.  I have nothing legal in place.  Do I really need to put something in place?

NORMAN CHIA:
This kind of depends on the particular situation. I’m presuming your daughter has a disability as well. If not, and if your daughter has decision-making capacity, I’d say she probably needs to make decisions herself, but I’m assuming that she has a disability.

When someone turns 18, they become a legal adult, and with this comes the freedom of being able to make their own decisions. No-one can make decisions on someone else’s behalf, unless they have the legal authority to do so. This legal authority can either be given by the person themselves (Enduring Power of Attorney, for instance) or by the VCAT, through an guardianship/administration or supportive guardianship/administration order.

Technically, while you can act on your daughter’s behalf, nothing you do or decide carries legal effect or authority. But, it seems to be working at the moment, and presumably in your daughter’s best interests, too.

It’s great that you’ve been able to act on your daughter’s behalf to date. But one day, you might find that a new bank staff member, for instance, doesn’t know you or isn’t familiar with your practice and so wants to have confirmation that you are legally allowed to act on your daughter’s behalf. You might find that the staff member won’t just accept your claim in good faith that you’ve been doing so – as mother – for a long time. That might well be true and completely the case, and a workable arrangement, but one day someone might want tangible and concrete evidence to confirm this. What are you going to do then?

Preparation is key – best to have something with legal effect in place. If and when the day comes when someone doesn’t just accept your claim in good faith, you might find yourself scrambling all of a sudden to somehow get something ‘official’ – that could take time, which could – in turn – cause delays with services for your daughter, etc. Plus, what if someone casts doubts or aspersions over you acting on your daughter’s behalf – whether rightly or wrongly and irrespective of motivation? Some agencies/institutions might then be less open to just acting on your instructions/directions without the back-up of something legal, as there might be flow-on consequences for them.

Of course, being under a legal order – be it guardianship/administration or supportive guardianship/administration – is still a restriction on a person’s rights and freedoms, even if it is to protect or help them. This is the ongoing contradiction, as it were, with guardianship: it’s designed to protect, but also takes away at the same time.

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Author:
DARU

Date published:
Wed 14th Oct, 2020