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Well, good morning.
Thank you for your interest in the work of the Public Advocate.
My name’s Brendan Hoysted and I work for the Public Advocate
and I’m based at the Guardianship List of VCAT, the tribunal,
and we’ll be talking about the tribunal
in this presentation on guardianship and administration.
VCAT is the Victorian Civil and Administrative Tribunal,
and the Guardianship List of VCAT
is the tribunal that considers applications
for the appointment of guardians and administrators,
and you can see the mission of the tribunal
is to protect the personal and financial affairs
of adults who have a disability,
where that disability means that the person
is unable to make their own reasonable decisions.
So personal and financial affairs.
Personal is about guardianship
and financial affairs is about administration.
Where the tribunal appoints a guardian or an administrator
it puts a time frame around that order.
So administrators are routinely appointed for three years
and guardians for a period up to 12 months.
Now, special procedures.
The law says that only the tribunal can consent to a special procedure.
It’s a particular type of medical procedure
and they include procedures that will result in
the permanent infertility of a person with a disability,
the termination of a pregnancy
or the harvesting of tissue for transplantation to another party.
And you can see that each of those three procedures
is a very serious medical procedure,
and irreversible in terms of its consequences.
And because of that, the law says that a guardian can’t consent,
a family member can’t consent,
and in circumstances
where the person with the disability themselves can’t consent,
it’s the tribunal who makes the decision.
VCAT can also make orders
in relation to enduring powers of attorney.
An enduring power of attorney is where a competent person
appoints another person to make decisions on their behalf.
The appointment’s made in anticipation
that the donor may not always be able to make their own decisions.
We think enduring powers of attorney are essentially a good thing,
but there are times when the powers are misused, or perhaps abused...
..and VCAT, specifically the Guardianship List of VCAT,
is able to make orders in relation to enduring powers of attorney.
That order might be to suspend the power, or to revoke it,
if the continuation of the power
is contrary to the best interests of the donor.
For any of you who have been to VCAT,
you’ll know that it’s much less formal
than other courts and tribunals.
It does make binding orders,
so it has a degree of formality,
but very often the member is sitting at a table
and the party’s sitting opposite,
and there’s a discussion across the table.
Lawyers are able to represent parties
in relation to applications for guardianship and administration,
but in the main, people represent themselves at VCAT.
And VCAT works pretty hard
at making the whole process accessible to people,
particularly people with disabilities
and people who are under stress.
Very often people who go to the tribunal are anxious about that.
If you’re the person who is the subject of an application,
you might be most concerned that it’s at the tribunal
that you will lose your right to make your own decisions,
and the tribunal will appoint someone else
to make decisions on your behalf.
So you can imagine that often
emotions are fairly close to the surface at the tribunal,
and VCAT will work hard to make the process
as comfortable as possible for people.
Now, a guardian is a person appointed
to make lifestyle decisions
on behalf of an adult with a disability.
Those decisions might be about
where the person with the disability is to live,
who they’re to live with, what services they receive...
..perhaps what medical treatment they receive.
An administrator is appointed
to manage the legal and financial affairs
of a person with a disability.
And, of course, a person with a disability might have
both a guardian and an administrator,
or one or the other,
and that will be determined by the needs of the individual.
So, when considering an application,
VCAT needs to be satisfied about certain things.
This is an adult jurisdiction,
so VCAT can only hear applications in relation to people
aged 18 years or over.
The tribunal has to be satisfied that the person has a disability,
and the legislation defines disability as including
an intellectual impairment, brain damage, dementia...
..physical disability or mental illness.
Having a disability in itself is not sufficient.
The tribunal has to be satisfied
that the disability affects the person’s capacity
to make reasonable decisions.
So the disability has to be found to affect
the person’s competence or capacity.
Thirdly, the tribunal needs to be satisfied
that there is a need for a decision to be made
on behalf of the person
and that there is no less restrictive alternative...
..than to appoint a guardian or an administrator.
The law recognises that it is restrictive, of course,
to take away a person’s right to make their own decisions
and to appoint a substitute decision-maker.
Irrespective of the level of disability,
to take away a person’s right to self-determination
is a very serious issue
and so the tribunal will only make orders
of guardianship and administration
where there’s no other way of resolving the issue.
Finally, the tribunal needs to be satisfied
that the making of an order of guardianship or administration
is in the best interests of the person with the disability.
The law stipulates that a guardian has to do certain things.
Primarily, the guardian must act in the best interests
of the represented person.
And the legislation says that a guardian does that
when she or he acts as an advocate
on behalf of the person whose interests they represent.
An advocate is someone who stands up for the rights of the person.
So, while a guardian is principally put in place to make decisions,
the role of the guardian extends to
standing up for the rights of the individual.
The law also specifies that the guardian has to take action
to protect the person from exploitation, abuse or neglect.
In making the decisions on behalf of a represented person,
the guardian will need to meet with the person
and their family and their carers
and others who have an interest in the life of the person.
And often it involves understanding the person’s culture,
perhaps their religion, their family relationships,
understanding the things that are important to them,
putting yourself in that person’s shoes
and making the decision that they would make for themselves
were it not for the disability.
The guardian’s obliged
to consider the wishes of the person with the disability
and give effect to that person’s wishes
wherever that’s possible.
You’ll appreciate that it’s not always possible
to give effect to the person’s wishes,
but the guardian must understand what the person wants...
..and see if it is possible to give effect to the person’s wishes.
Importantly, the guardian will consult with the represented person
and anyone who has a genuine interest in the life of that person.
Where the tribunal decides that it’s appropriate to appoint a guardian,
the tribunal then has to turn its mind to who to appoint
and the legislation directs the tribunal
to appointing a family member or friend of the person
wherever that’s possible.
The tribunal has to be satisfied that whoever is appointed
will act in the best interests of the person...
..and doesn’t have interests themselves
that will conflict with those
of the person who is the subject of the order.
The guardian and administrator
has to be accessible to the represented person
and understand their wishes and their values.
It’s only where the tribunal finds
that there’s no-one in the person’s family
who is willing or suitable to take on the role
that the Public Advocate is appointed as guardian.
We use the term ‘guardian of last resort’.
Now, the tribunal also has the ability
to make orders of guardianship and administration
in circumstances of urgency or risk.
A temporary order is an order the lasts for 21 days
and is often made out of hours
and in circumstances
where the person with the disability is at risk.
For example, a person might be living at home
and in need of medical attention
but refusing to go to hospital to have that medical treatment.
You’ll appreciate that the doctor can’t just pick the person up
and take them to hospital.
The doctor might call the ambulance,
but if no-one can persuade the person to go,
because the person has a disability,
then the tribunal might be asked to consider
the making of a temporary guardianship order.
And where a guardian is appointed
and given the authority under the legislation,
a guardian can direct ambulance officers, for example,
to pick someone up and to carefully place them on a gurney
and take them to a hospital, or place directed by the guardian.
So, orders like that,
where they’re made
without the tribunal meeting the parties face-to-face,
last for a period of 21 days only,
and then the tribunal will convene a hearing
and the parties will be in attendance
and the tribunal will consider the matter in greater detail.
Temporary orders can be for both guardianship and administration.
The legislation also provides for a guardian or administrator
to seek advice from the tribunal.
So there are times when a guardian is considering making a decision
on behalf of a represented person
and, for example, that decision might be opposed by other people
and be contentious in nature.
To allow for greater consideration of the issues,
the legislation provides for the guardian to make an application
and to be heard by the tribunal
about the matters under consideration.
And the tribunal, in turn,
will provide advice to the guardian or administrator.
I mentioned that the tribunal or the Guardianship List of VCAT
has authority to make orders
in relation to enduring powers of attorney
and the tribunal can suspend or revoke an enduring power of attorney
or make other orders -
for example, requiring the attorney to produce financial statements
and to have those records audited.
If a person believes that the tribunal has made an error
in the order that they’ve made,
for example, by appointing the wrong person to be guardian
or by not appointing a guardian...
..then an application can be made for a rehearing.
That application has to be made
within 28 days of the original order.
And it’s made to VCAT.
The tribunal, when it decides to rehear a matter,
will have a more senior member
than the member who made the original order,
consider the evidence and application afresh.
So a more senior member considers all of the evidence
and is then able to make an order
either changing the original order or affirming the original order.
A reassessment is slightly different.
When the tribunal appoints a guardian or an administrator,
it puts a time frame around that order...
..at the end of which the tribunal will conduct a reassessment hearing,
and the purpose of that hearing is to determine
whether the issues have been resolved
and the order can be revoked,
or perhaps the order needs to continue.
In addition, a person who is the subject of an order
or another person interested in the life of a person with a disability
can make an application to VCAT
for a reassessment of the order at any time.
The tribunal will want to see
whether there have been changes in circumstances,
or perhaps in the case of a person with a mental illness
who has been unable to manage their own affairs...
..that person may now be well enough to make their own decisions,
and the tribunal might be persuaded to revoke the order,
even if the person needs to have an order a year later
or two years later.
The order can be then put back in place.
We’re going to have a look at a couple of case studies.
Jane is 32 years of age and has an acquired brain injury.
She was living in a Supported Residential Service
after the breakdown of her marriage and after the accident
and she met Danny in that SRS.
They decided to leave the SRS
and went to live in a caravan in a country town.
Jane’s family were unhappy with that decision
and made an application to the tribunal
to have a guardian appointed to bring Jane back to the SRS
where they believed her needs were most appropriately met.
They were concerned about the relationship with Danny
and concerned that Jane may become pregnant through that relationship.
So any guardian appointed by the tribunal
is appointed to make decisions in the best interests of the person.
That is, Jane, in this case.
The law requires the guardian
to take into consideration Jane’s wishes.
So, in this case, you can see that the guardian met with Jane and Danny
and consulted with their families and the service providers
and the staff of the SRS where they’d both been living.
The guardian was persuaded
that Jane and Danny could live outside the SRS...
..perhaps with the provision of some services to support them.
The caravan probably wasn’t ideal,
and so the guardian supported Jane and Danny
to make an application for public housing.
The parents were concerned
about the nature of Jane and Danny’s relationship
and the possibility that Jane may fall pregnant,
and of course a guardian can’t regulate
a person’s personal or *** relationships.
A guardian’s not there 24 hours a day
to make those sorts of decisions.
But a guardian can do things and can advocate on behalf of a person,
and in the case of Jane and Danny,
the guardian organised
for them to have some counselling around their relationship.
Let’s look at another scenario.
Mr B’s a young man with an intellectual disability
who’s been living in a community residential unit.
He’s got some behaviours of concern
and he’s been required to move from CRU to CRU.
His behaviour’s deteriorated and he’s assaulted another resident...
..and the other four residents of their house,
through their representatives,
has made an application to the magistrates’ court
for an intervention order to control this man’s behaviour.
The magistrate has adjourned the application
for an intervention order
and referred the matter
to the Office of the Public Advocate for advocacy.
So you can see in this case we’re not a guardian,
we’re not an investigator,
but a magistrate has asked us to be involved as an advocate,
to stand up for the person with the disability,
to see if the issue can be resolved
through the involvement of an advocate.
Now, in many cases such as this,
these issues will be able to be resolved by the service provider,
the Department of Human Services...
..but in this case we can see
that the OPA advocate has convened a meeting,
and perhaps it’s been through the involvement
of an independent advocate
that the issues have been able to be resolved.
These last couple of slides provide you with some information
about how you can contact the Public Advocate.
Perhaps you’re interested in obtaining
some of the publications produced by the office.
We’ve got the phone number for the Public Advocate down the bottom,
and the web address for Legal Aid.
The final slide gives a telephone number
for the Office of the Public Advocate.
You’re free to ring this number
to speak with someone from the Advice Service.
Perhaps you’re interested in obtaining a publication
produced by the office,
or perhaps you’re considering making an application to the tribunal.
Thank you for your time this morning.
Are there any questions for me?
I have an 18-year-old daughter with an intellectual disability.
I thought that I was already her guardian.
Do I need to make a formal application to VCAT
to formalise this guardianship?
Your belief that as the parent of a person with a disability
you’re already the guardian is a commonly held view,
but it is, in fact, not the case.
The law recognises your daughter’s right to make her own decision
and VCAT will only appoint a guardian...
..which would be taking away her right to make her own decisions,
in circumstances where there is a need
and no less-restrictive way of resolving the issue is possible.
Now, can I tell you that you’re recognised in law
as the person responsible for your daughter.
That means that you can consent to any medical treatment that she requires.
You provide the consent if she is unable by reason of her disability.
So that is an example
of a less-restrictive way of making a decision
than through you being appointed as her guardian,
because if you’re the guardian, that takes away your daughter’s rights.
Now, if there was a dispute about where your daughter was to live
or who she was to live with,
then that might be a decision
that would require the appointment of a guardian,
because your role, as it currently stands as the person responsible,
is limited to matters about medical treatment and health care.
So don’t rush to VCAT yet.
VCAT won’t make an order
unless there’s a decision that needs to be made
and the decision can’t be made in a manner less restrictive
than through the appointment of a guardian.
(APPLAUSE)
Thank you.