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From parens patriae to advance personal planning – Guardianship in Australia 1824-2016

A paper for the Australian Guardianship and Administration Conference,

Sydney 17-18 October 2016 by

Nick O’Neill, a former President of the Guardianship Tribunal of NSW

1. A brief history It can be said that the guardianship system began in Australia in 1824 with the establishment of the Supreme Courts of New South Wales and Van Diemen’s Land (Tasmania) under the Third Charter of Justice. That Charter empowered both Supreme Courts to; “appoint guardians, and keepers of the persons and estates of natural fools, and of such as are or shall be deprived of their understanding or reason by act of God, so as to be unable to govern themselves and their estates…”1 By the late 1950s awareness of the different causes of mental incapacity was increasing. Nevertheless many people with mental incapacity, whether caused by mental illness or otherwise, were sent to and lived in insane asylums as these were then called. The Mental Health Act 1958 (NSW) replaced, outmoded or stigmatising or just plain offensive names, titles and descriptions such as lunacy, idiot, imbecile and insane asylum and replaced them with terms such as mentally ill and mental hospital. The Master in Lunacy became the Master in the Protective Jurisdiction. Most importantly the Act replaced the idea that mental hospitals were places of restraint and confinement with the idea that they were places of treatment and that those who were mentally ill required care, treatment and, sometimes, control. Nevertheless, the distinction between those who were mentally ill and those who had an intellectual disability, acquired brain injury or had dementia (then still called senility or senile dementia) and their needs for different kinds of care and treatment had not been made. Most of those who were not being cared for by their families were still housed in the old asylums renamed mental hospitals.2 The first Guardianship Board was established in Tasmania in under the Mental Health Act 1963 (Tas). The Board had jurisdiction in relation to people with mental illness or an intellectual disability (called subnormality).3 In 1975 a committee chaired by a Dr Dibden was established in South Australia to review that State’s then existing legislation.4 In 1977 the South Australian Parliament enacted legislation to establish a Guardianship Board with power to appoint guardians and administrators for people with a mental illness, an intellectual disability, dementia and acquired brain injury.

1 O’Neill and Peisah Capacity and the Law, ebook on austlii.org.au – Chapter 5. 2. 2. 2 Ibid. Ch. 5.2.3. 3 Ibid. Ch. 5. 3. 1. 4 Ibid. Ch. 5. 3. 2. See alsoParliamentary Debates South Australia, 1976-77, vol. 3. p. 3203.

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Starting in 1980, the Victorian Government used aspects of the machinery of government to receive advice that led to the enactment of the Victorian Guardianship and Administration Act that came into force in 1987. That Act established the Guardianship and Administration Board to operate as a fully independent tribunal empowered to appoint others, and not itself, as either limited or plenary guardians or plenary administrators for adults with a relevant disability who were unable, by reason of the disability, to make reasonable judgements in matters relating to their person, circumstances or estate and were in need of a guardian or administrator. The Act also established the office and functions of the Public Advocate. As a result of that Act, Victoria went from the nineteenth century approach to guardianship and administration to modern guardianship in a single step.5 During the 1980’s in New South Wales Powell J was becoming concerned about the inappropriateness of the NSW Mental Health Act as mechanism for dealing with people who had intellectual and decision-making disabilities not caused by mental illness. In 1982, he held that an elderly woman with vascular dementia was not mentally ill under the Mental Health Act 1958 (NSW) but by reason of mental infirmity arising from age was incapable of managing her (financial) affairs. However, in 1983 he held that neither Down’s Syndrome nor Fragile X (chromosome) Syndrome was a mental illness for the purposes of the Mental Health Act 1958 (NSW) but could be a mental infirmity arising from disease under the Act. By 1986, using the same approach as in the 1982 case, Powell J found that a man with Alzheimer’s Disease was not mentally ill under the Mental Health Act 1958 (NSW) and discharged him from the mental hospital. Earlier, in 1984, Powell J resorted to the use of the inherent power of the Supreme Court which he said derived from the Third Charter of Justice to resolve the case of a 28 year old woman with a severe intellectual disability and appointed the Protective Commissioner as the committee of both her person and her estate. In that case he also noted that he had drawn attention to what he saw were the inadequacies of the law relating to the protection of people with an intellectual disability and of the powers of the Court to give protection to them.6 At the same time as Powell J was making those decisions and raising his concerns, the Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled, chaired by David Richmond, carried out its work and, in March 1983, reported to the Minister for Health. The Richmond Report, as it soon became known, recommended first that services to people with a psychiatric condition or an intellectual disability “be delivered primarily on the basis of a system of integrated community based networks, backed up by specialist hospital or other services as required”. There were to be two prime operational objectives, to fund or provide services which maintained clients in their normal community environment and to reduce progressively the size and number of mental hospitals by decentralising the services they provided. Services for those with an intellectual disability were to be separated from mental health services, funded separately and delivered under separate management as community based services which included the development of small community based residential 5 Ibid. Ch. 5. 3. 3. 6 Ibid. Ch. 5. 3. 5.

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units to rehouse residents from the existing institutions.7 The Richmond report gave great impetus to the deinstitutionalisation of people with an intellectual disability in particular in NSW. Deinstitutionalisation was also being pressed for in other parts of Australia. Also there was a third force at work in NSW. A group of clear-minded, capable and politically savvy persons concerned about those with a whole of life intellectual disability. They played a central role in the enactment of what is now the Guardianship Act (NSW) in 1987 and in seeing that it was brought into force in 1989.

The NSW Act is similar to, but different from the Victorian Act. All of the other States and Territories followed cherry-picking the better ideas from the legislation in Victoria and NSW, and later Queensland. South Australia and Tasmania updated their legislation accordingly. There have been recent amendments in some of the States and Territories sometimes built on the experiences of others, and sometimes reflecting key provisions of the Convention on the Rights of Persons with Disabilities. The Northern Territory enacted a highly compromised form of guardianship legislation in 1988, the Adult Guardianship Act (NT). However, after a number of reports and a number of failed attempts, in July 2016 brought into force the most modern version of Australia’s modern guardianship system, based on the Advance Personal Planning Act (NT) and the Guardianship of Adults Act (NT) on 29 July 2016.8 2. So where are we now? 2.1 A greater understanding of the causes and effects of the different kinds of disabilities that affect decision-making capacity As a result of medical science research, we have a much greater understanding of the causes and effects of the different kinds of disabilities that affect decision-making capacity. First, intellectual disability which is usually caused by genetic defects, e.g. Downs Syndrome and Fragile X (chromosome) Syndrome but there are many other gene based causes. Second, acquired brain injury caused by hypoxia and or other trauma to the brain in a wide range of situations, including motor vehicle and industrial accidents, stroke, alcohol or drug use or abuse. Third, psychiatric condition which may be episodic or chronic and may or may not be amenable to medication while the medications themselves may or may not cause adverse side effects. Finally, dementia; the major dementia, Alzheimer’s disease, caused by amyloid plaques, and tangles in the neurons, leading to the loss of connexions between neurons 7 Ibid. 8 Ibid. Ch. 5 generally.

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and the steady loss of brain function as amyloid builds up in the brain and eventual death. Vascular dementia caused by transient ischemic accidents (small but non-permanent blockages in the brain – mini-strokes) and leading brain function loss in the areas affected. These different causes of loss or reduction decision-making capacity lead to different responses by guardianship tribunals ranging from finding no need for a guardianship or financial management (administration) order to finding the need for a guardianship order giving a number of guardianship functions to the guardian and a plenary financial management (administration) order. 2.2 The development of ways of maintaining decision-making autonomy In the case of those who develop decision-making disabilities later in life, usually people who develop Alzheimer’s Disease, we have developed a number of ways in which they may maintain at least some of their decision-making autonomy after they have lost their capacity to make some or all decisions. These are enduring powers of attorney, appointments of enduring guardianship (enduring powers of attorney for personal matters) and advance care directives, usually about treatment at the end of life. While they stand as three separate documents in some States, the first two of them have morphed into enduring powers of attorney for financial or personal matters in some jurisdictions. In the Northern Territory all three of them can be included in an advance personal plan and that personal plan can include advance consent decisions and advance care statements. Advance consent decisions are decisions about future health care action for the maker of the advance personal plan that they have included in the plan. 9 Unless NTCAT orders that the maker's advance consent decision be disregarded, no-one else may make a consent decision about the health care action. An advance personal plan could serve as a “Ulysses agreement” in which the maker of plan, who has an established but episodic mental illness that responds to treatment, may include in the plan an advance consent decision setting out the agreement they, the maker, had made with their treating doctor and any decision-maker the maker had appointed under the plan to accept the particular treatment set out in the advance consent decision. The modern guardianship system in Australia, through legislation of the kind just referred to and through decisions like Hunter and New England Area Health Service v A10 in which the NSW Supreme Court recognised as enforceable an advance care directive included in an appointment of an enduring guardian, recognises and maintains the decision-making autonomy of those who make advance decisions when they had decision-making capacity. 2.3 Clarifying tests for capacity 2.3.1. Decision-making capacity for specific decisions – two tests required It is has become clear two issues have to be considered when determining whether a person has decion-making capacity in relation to a matter. The first is what substantive matters does the person have to understand in order to make the decision? The second 9 Advance Personal Planning Act (NT) s. 8 (1(a) and (b). 10 [2009] NSWSC 761.

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is what processes must the person be able to go through in order to make a decision which has that content? Lawyers like to start with the time honoured and true statement about capacity to make a decision about a particular matter made in 1954 by the High Court in Gibbons v Wright namely that:

[T]he mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.11

However, that general statement has to be filled out to include the substantive matters (the nature of the transaction) the person has to understand in order to make the decisions that are set out in the relevant legislation or provided by the judges through their judgments which make up the common law. Also that general statement has to be complemented by the second test which is part of the common law in some jurisdictions like NSW and included in the legislation in other jurisdictions including South Australia, the Northern Territory and the United Kingdom.12 That test is sometimes known as the Dr Eastman/Thorpe J test, but it has been restated many times by judges in various jurisdictions. Currently it is seen as having four elements and can be set out as a test for incapacity as follows:

[A] person will be taken to have impaired decision-making capacity in respect of a particular decision if the person is not capable of:

1. understanding any information that may be relevant to the decision; or 2. retaining such information [at least for a limited period]; or 3. using such information in the course of making the decision; or 4. communicating their decision in any manner.13

It should be noted that this test includes the idea that understanding information includes accepting the information as true. This is particularly relevant in relation to capacity to consent to particular medical treatments. It should also be noted that the tests set out above relate to capacity to make a particular decision or understand a particular transaction that the person is about to carry out. 2.3.2. Decision-making capacity for specific decisions There are many specific decisions the criteria for capacity to make have been set down either in the common law or legislation. Some examples:

11 [1954] HC 17 [7]; (1954) 91 CLR 423. 12 See Advance Care Directives Act 2013 (SA) s 7; Advance Personal Planning Act (NT) s 6; Mental Capacity

Act 2005 (UK) s 2. 13 Advance Care Directives Act 2013 (SA) s 7.

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1. Capacity to make a will – Banks v Goodfellow (1870) LR 5 QB 549. 2. Capacity to make an enduring power of attorney – Powers of Attorney Act

2014(Vic) ss 4(1)(a) and 23(2). 3. Lack of capacity to consent to consent to medical or dental treatment

Guardianship Act 1987 (NSW) s 33(2).

As has been set out in 2.3.1 above, these tests are supported by the test for being able to make the decision based on the substantive career for making the test. 2.3.3. Where the substantive criteria required for making the decision has not been settled – capacity to consent to sexual relations The view expressed by Munby J, who is now the President of the Family Division of the High Court of Justice in England and Wales, is that capacity to consent to sexual relations is issue specific, namely a question directed to the nature of the activity rather than to the identity of the sexual partner. He other [male] judges of the Family Division and the Court of Appeal in England share that view and the view that all that person had to understand in order to have capacity to consent to sexual relations were three matters: (a) the mechanics of the act; (b) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections and (c) that sex between a man and a woman may result in the woman becoming pregnant. However, in one of the last cases decided by the House of Lords, now the United Kingdom Supreme Court, Baroness Hale stated in a case in circumstances in which her comments were not binding on other judges that:

It is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.14

While these are the views expressed by English judges. A number of leading psychiatrists with expertise in relation to the concept of capacity and the assessment of capacity consider that it is appropriate to take the following factors into account when assessing capacity to consent to sexual relations;

1. What is the person’s understanding about what is involved in sexual intercourse?

2. What is their knowledge of the nature of the relationship e.g. the identity of the other, emotional obligations of romantic relationships in general and in relation to the specific object of their affections?

3. What is their knowledge (at a basic level) of the consequences of the relationship e.g. risks of pregnancy, sexually transmitted diseases, genital trauma, itch, anxiety?

14 R v Cooper [2009] UKHL 42 [27].

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4. Can they advocate for their interests, and terminate the relationship if they choose?

As a separate but related issue, they suggest that when considering issues of abuse, harm or exploitation, the following matters should be considered :

1. What kind of relationship do they have? Is there a power imbalance or elements of coercion by or obvious gain to one party?

2. Is there a significant discrepancy between the two people’s cognitive capacity?

3. What pleasure (or otherwise) do they experience in the relationship? Are they willing or content for it to continue? Does one party indicate distress or a negative response to the relationship?

The psychiatrists making these proposals know that doctors or other health care professionals are sometimes asked about the appropriateness of two people - either one or both of whom have cognitive impairment or intellectual disability – entering into a sexual relationship. They note a range of issues of appropriate concern but also note thatthe rights to intimacy and sexual expression are fundamental human rights owed to all people, including those with disability, and those in care facilities. The question of what are the criteria for capacity to consent to sexual relations has not been settled in the civil law in Australia, but it is an issue that does arise in relation to people with an intellectual disability, those with acquired brain injury and people living in aged care facilities. It may be a matter that arises in an application for a guardianship order, if it hasn’t already been. An important point about raising this matter is that the common law moves on in the light of new knowledge and understanding of medical and psychological matters. In 1970 in the High Court of Australia, in a breakthrough case arising from a person developing a psychiatric condition as a result of nervous shock caused by an accident at work, Windeyer J noted “Law marching with medicine but in the rear and limping a little….”15 However earlier, in 1941, in a leading case on will-making capacity, Dixon J noted in a more matter-of-fact and useful way that:

We are not bound to go on applying views held over a century ago about mental disturbance and insanity and to disregard modern knowledge and understanding of such conditions.16

It is important that the law reflects modern knowledge and understanding of how the brain works and effects of the different conditions that affect the ability of individuals 15 Mount Isa Mines Ltd v Pusey [1970] HCA [3]; (1970) 125 CLR 383, 395. 16Timbury v Coffee (1941) 66 CLR 277, 284.

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to understand issues and situations they have to deal with and make decisions about. This is a matter my joint author, Professor Carmelle Peisah takes up, in relation to capacity to consent to sexual relations, in Chapter 2 of the update of our ebook “Capacity and the Law”, which will be available free on the internet soon. 2.3.4. Where there is unlikely to be an exhaustive list of criteria to be applicable on each occasion – guardianship and financial management (administration) This is because as Lindsay J of the NSW Supreme Court sets out in some detail, the fact that tribunals considering whether a person lacks capacity to manage their own personal or financial affairs need to apply a holistic approach in applying the different concepts and requirements in the relevant legislation to the facts of each particular case with the result that; “an exhaustive definition of the concept, applicable to all cases at all times, is not … to be expected”.17 While this applies also to the making of guardianship orders, take the example of financial management (administration) orders. There are differences in the way the applicable legislation is drafted in the eight relevant jurisdictions in Australia. However, there is considerable similarity in the matters the tribunals have to be satisfied about before they may make a financial management (administration) order in relation to a person’s financial affairs. There has to be a basis, demonstrated by the evidence, that shows that the persons lacks capacity to manage their affairs, whether specifically inability to make reasonable judgments about those affairs or other reasons for not being capable of managing their affairs. There must be a need for a manager for those affairs and the order must be in the best interests of the person whose financial affairs will be placed in the hands of another person to manage. The capacity required cannot be issue or question specific; it must be wider than that. This is because managing one’s financial affairs requires the ability to carry out a number of different functions repeatedly, plan one’s expenditure based on income, make number of decisions of greater or lesser complexity based on the size and content of the estate and many other matters, some constantly present and others arising only occasionally. In a 2015 case, Lindsay J of the NSW Supreme Court summed up what needed to be proved before the Court or NCAT could be satisfied that a person was unable to manage their financial affairs, not in a set of criteria but in a holistic consideration of the legislation and the facts of each particular case to determine the functionality of a person’s management capacity to manage their estate [financial affairs].18 Lindsay J noted that in considering whether a person was or was not capable of managing their own affairs, the Court [and NCAT] should focus attention on whether the person is able to deal with, by making and implementing decisions about their own affairs, including “person and property, capital and income”. Can they do that in a reasonable, rational and orderly way, with due regard to their present and prospective wants and needs, and those of family and friends, and without undue risk of neglect, abuse or exploitation? 17 P v NSW Trustee and Guardian [2015] NSWSC 579. See [276] to [214] generally and [312] in particular. 18 P v NSW Trustee and Guardian [2015] NSWSC 579 [301]

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He continued that when considering whether the person was capable of managing those affairs, attention may be given to: (a) [evidence of] past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) the extent to which the person, in the circumstances that they were in, could be relied upon to make sound judgements about their welfare and interests.19 Lindsay J went on to point out that the terms [the words and how they are stated] of the legislation must be viewed holistically, and bearing in mind that the concept of “capability” is directed to the reasonably foreseeable future as well as to the present time. This holistic approach also involved a consideration of the principles set out in the relevant legislation, particularly those provisions that placed a strong emphasis on a person’s autonomy and dignity.20 H then noted that whether a person is to be found “capable of managing his or her own affairs”, or not, ultimately requires a judgement-call grounded upon guidance available within the framework of the governing legislation and a close examination of the facts of the particular case.21 And for those seeking a definition or set of criteria he stated:

An exhaustive definition of the concept, applicable to all cases at all times, is not otherwise to be expected…22

I will be coming back to the role the tribunals with jurisdiction to make guardianship and financial management (administration) orders later in the paper. 2.4 Involving people with decision-making disabilities in making personal and financial decisions – some practices in NSW The Office of the Public Guardian in NSW began operations in August 1989. Since then it has been its practice, where it is possible, appropriate and practicable to do so, to involve those for whom the then Guardianship Board, now the Guardianship Division of NCAT, has appointed the Public Guardian as their guardian in the decision-making about the matters for which the Public Guardian has been made (substitute) decision-maker. From 1997 in NSW, the then Protective Commissioner, now the NSW Trustee and Guardian, or the private financial manager, if authorised by the NSW Trustee and Guardian to do so, have had power to authorise the person whose estate is the subject of a financial management order made by the tribunal that is now NCAT to deal with as much of the estate as the manager considers appropriate.23 This practice in relation to persons under guardianship and particularly this legislatively authorised empowering of a person whose affairs are under management

19 Ibid. [308]-[309]. 20 Ibid. [311] 21 Ibid. [312]. 22 Ibid. 23 NSW Trustee and Guardian Act 2009 (NSW) ss. 66 and 71.

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to manage at least some of those affairs can be effective in providing a role in decision-making directly affecting their lives. They can also be useful in providing evidence as to whether or not a person may manage more or all of their financial affairs and lead to the removal of the financial management (administration) order in relation to their estate (financial affairs). The informal involvement of persons the subject of guardianship orders in the making of personal decisions, can be similarly useful in leading either to the removal or non-renewal of a guardianship order in relation to them. However these practices also show that the concept of supported decision-making is not entirely foreign to and certainly not inconsistent with a key principle behind Australia’s guardianship system, namely that guardianship and financial management (administration) orders are intended as a last resort, to be made only when a less restrictive alternative cannot be found. 2.5 Supported decision-making – supportive attorneys - the Victorian experiment Supported decision-making is currently being pioneered in Victoria. It involves the person with limited decision-making capacity appointing another person to support them in making their decisions. Only those who are 18 years or older who have decision- making capacity in relation to making the supportive attorney appointment may appoint a supportive attorney. That decision-making capacity includes understanding the following matters:

1. that the appointment enables them (as the appointor) to make and give effect to their own decisions with support; and

2. that the appointment allows them to choose a person to support them to make and give effect to their own decisions; and

3. that supported decisions are the decisions of the appointor and not the decisions of the supportive attorney; and

4. when the appointment commences; and 5. that they may revoke the appointment at any time when they have decision-

making capacity in relation to making the supportive attorney appointment.24 As the Attorney-General pointed out in his second reading speech introducing the legislation:

The availability of such appointments will help promote autonomy and dignity for people with a disability who have the capacity to make various decisions for themselves, provided they have support to make and give effect to those decisions. It provides legislative acknowledgement that mechanisms other than substituted decision making can be used to allow people with a disability to engage in activities requiring legal capacity and to make and give effect to decisions that affect their lives.25

As the Attorney-General also noted in that speech, the Act allows an appointor to specify whom they want to support them in their decision-making, the types of 24 Powers of Attorney Act 2014 (Vic) s. 86. 25 Parliament of Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 57th Parliament, First

Session, Thurs, 26 June 2014, 2394.

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decisions they want support to make and the types of support they want in order to make and give effect to those decisions. The Attorney-General suggested that this would also provide certainty for third parties, allowing them to deal with a supportive attorney more confidently than if the relationship were informal, and thus better enabling appointors to have their wishes and decisions respected and implemented.26

While that may be so, there will be great pressure on people with decision-making disabilities, and possibly those with disabilities not affecting their decision-making capacity, to make such appointments whether they want to or not. There will be an expectation that long term informal arrangements that have worked well will be formalised raising the unwanted need to choose between informal supporters for the role of supportive attorney (or attorneys). More significantly, this ability to appoint supportive attorneys will emphasise the distinction between those who are able to make such appointments and those who are unable to do so because of their lack of capacity to make such appointments because of the degree of their intellectual disability, acquired brain injury, psychiatric condition, dementia or other decision-making disability. This will have the likely effect of increasing the difficulty for those supporting such persons beneficially being able to access information about and communicate with others on behalf of such adults without being formally appointed their guardian or administrator. These concerns are not reasons for not seeking to develop the idea for supported decision-making and to have it accepted as appropriate practice. What is being suggested that informal supported decision-making not be devalued, but accepted where there is no basis for doubting that the person with limited decision-making capacity has real involvement in the decision-making process, and that those who lack capacity to appoint supportive attorneys, in particular, are not precluded from the possibility of informal support in making decisions so that they have a real role in the process where that is possible. Also it is important, as already provided for in Victoria, that care workers, health providers or accommodations providers cannot become supportive attorneys. No one suggests that supported decision-making is the complete answer. As already noted there will a number of people whose decision-making disabilities are such that they cannot appoint a supportive attorney let alone take part in any process of decision-making. Included in this group would be people with severe or profound intellectual disability, permanent, serious acquired brain injury, people with a mental illness that is so serious or so non-amenable to treatment that they cannot appoint a supportive attorney or take part in the decision-making processes that involve a supportive attorney whom they had the capacity to appoint at an earlier time. Also included would be people in the later stages of Alzheimer’s disease or other dementias who have lost most, if not all, decision-making capacity. This inevitable loss of decision-making capacity is the major reason for encouraging those with a diagnosis of dementia, who have not already done so, to make or update their will, appoint an attorney under an enduring power of attorney and an enduring guardian and make an advance care directive or at least advise their general 26 Ibid. 2394.

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practitioner and trusted family members of their wishes generally or in particular about treatment at the end of life. As with all processes developed with good intentions, there will be instances in which an appointment as a supportive attorney will be used by the person appointed as a mechanism to control the life of the appointor and/or obtain access to their financial resources to use them for their own benefit and not the benefit of the appointor. While VCAT has jurisdiction to deal with such matters and revoke or suspend the supportive attorney appointment, it is often the case that the fact that the harm has been done that comes to light that leads to the application to VCAT.27 3 Guardianship and financial management (administration) orders are a last

resort The idea that guardianship and financial management (administration) orders are a last resort is a fundamental tenet of the Australian guardianship system. It is apparent in the legislation of the various States and Territories. For example the Guardianship Act 1987 (NSW) imposes a duty on everyone exercising functions under that Act to observe a set of principles including restricting the freedom of decision and freedom of action of persons with [decision-making] disabilities as little as possible and encouraging them, as far as possible, to live normal lives in the community.28 This applies to the Guardianship Division of NCAT when it is dealing with applications to make either guardianship or financial management orders or both. But it is not just the principles in the Act. If a person who, by virtue of their disability and consequential incapacity is by operation of Act is a person for whom a guardian can be appointed but that person can be provided with services, which include accommodation and other services related to their daily needs, without the making of a guardianship order, then no guardianship order should be made.29 3.1 Informal arrangements – the need to keep them unless formal arrangements are necessary in the interests of the person with the decision-making disability The desire to formalise matters is increasing the pressure to dispense with informal arrangements that may have existed for some time by which a person with decision-making disability is assisted by a parent, other family member, trusted friend or service provider in the process of making purchases, paying bills, dealing with banks, doctors, and so on as part of ordinary, day-to-day living. One example of this is the idea of appointing a supportive attorney, which could morph into the need to appoint a supportive attorney if one had the decision-making capacity to do so and an appropriate person to support. As already noted, when introducing the legislation to allow for the appointment of supportive attorneys, the Attorney-General of South Australia suggested that by dealing with supportive attorneys third parties would have certainty than if the relationship was informal, consequently better enabling appointors to have their wishes and decisions respected and implemented. The benefit of having a supportive attorney is to the third party. This is because the third party does not have to satisfy themselves that the appointor 27Powers of Attorney Act (2014) (Vic) ss 116 and 120 and Part 8, Divisions 2 and 3 generally. 28 Guardianship Act 1987 (NSW) s 4. 29 This is the effect of s.14(2)(d).

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appreciates what their obligations under the contract are. It should be noted that the supportive attorney is not liable to meet the requirements of the contract imposed on the appointor, so the appointor may find themselves liable contracts that they did not appreciate they were making. Another example is entering agreements and making other decisions in order to get the benefits of the NDIS (National Disability Insurance Service). The NDIS will bring many benefits to people with disabilities, including a decision-making disability. Many people with disabilities, including some with decision-making disabilities, will be able to enter into required contractual arrangements in order to receive services; but others will not. Because the scheme as statutorily constructed and operationalised by administrators took little account of at least some important unintended consequences, tribunals with guardianship jurisdiction are under pressure to appoint guardians and financial managers (administrators) for such persons on the grounds that they are required under the National Disability Insurance Agency (NDIA) processes. Again we see the needs of the service provider resulting in the person with the decision-making disability having both the inconvenience of and the stigma of having their financial affairs placed under the management of another person and/or some personal decisions having to be made by appointed guardians.30 It should be noted that if a person is provided with services, they are under an obligation to pay for those services either because the contract is for necessaries or because the provider is entitled to reasonable remuneration for providing those services as a matter of quantum meruit. Those responsible for designing and operationalising such policies, that are often very beneficial to people with decision-making disabilities, need to think about how to achieve the goals of the policies without imposing costly, time-consuming, for both the tribunal, those who have to apply for financial management (administration) and/or guardianship orders or become parties or witnesses to the proceedings that have to take place before such orders can be made. 3.2 Planning ahead – appointing substitute decision-makers and so avoiding the need for either guardianship or financial management orders As the workload of the guardianship tribunals grew in the 1990s, they, the Public Guardians/Advocates and other government agencies began to encourage people to appoint family members or others they trusted as attorneys under enduring powers of attorney so that those attorneys could manage their financial affairs for them when they had lost their capacity to do so. South Australia introduced the legislation to allow people to appoint their own guardians as enduring guardians with the function of making personal decisions them about accommodation, health care, medical and dental consent, services and other non-financial matters. That legislation was taken up in NSW, Victoria, Tasmania and eventually WA. Queensland introduced the concept of enduring powers of attorney for financial and personal matters and that approach was taken up in Victoria and the 30 KCG [2014] NSWCATGD 7. But see also KTT [2014] NSWCATGD 6 in which the appointment of a

guardian was avoided, at least initially.

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ACT. South Australia replaced enduring guardians with advance care directives via its Advance Care Directives Act 2013 (SA) which came into force in 2014. Also in 2014 the Northern Territory’s Advance Personal Planning Act (NT) which allows adults to make advance personal plans effectively allowing enduring powers of attorney, appointments of enduring guardians and wide ranging advance care directives to be created by, and included in, the one document. The process was completed on 28 July 2016 with the coming into force of the Guardianship of Adults Act (NT). The recent developments of advance care directives in South Australia and the NT have already been mentioned, and will be returned to. However it is important to appreciate that the first effort at legislating for advance care directives amounted to refusal of treatment certificates that operated only in limited circumstances and had to be signed by doctors after complex procedures had been gone through.31 The advance health directive provided for in the Powers of Attorney Act 1998 (Qld) was a step forward from this. The South Australian Advance Care Directives Act 2013, which commenced in 2014, allows an adult to include in their advance care directive a binding provision that is a refusal of particular health care. The NT Advance Personal Planning Act, which also commenced in 2014, allows an adult to include in their advance personal plan an advance consent decision to refuse described health care action and that advance consent decision must be given effect to unless NTCAT orders that it may be disregarded.32 In NSW advance directives are recognised as valid as a matter of common law. They are to be given effect according to their terms.33 They have the advantage of being developed over time with the input, not only of lawyers but also doctors and other health professionals working in palliative care or other relevant areas of health related practice, ethicists and others. There has been concern raised about attorneys, usually adult children, using their access under enduring powers of attorney made by aged parents to the money, real property and other assets of such parents and converting it to their own use as a result of “inheritance impatience”. This issue was considered and reported on this year by a committee of the NSW Legislative Council as part of its Inquiry into Elder Abuse in NSW. The Victorian Powers Of Attorney Act 2014 contains a number of provisions to counter use of enduring powers of attorney as a means of elder abuse of the elderly and the NSW Parliamentary Committee recommended as follows:

That the NSW Government, as a priority, introduce legislation to amend the Powers of Attorney Act 2003 consistent with Victoria’s Powers of Attorney Act 2014, thereby significantly enhancing safeguards in respect of enduring powers of attorney. 34

31 See the Medical Treatment Act 1988 (Vic). 32 Advance Personal Planning Act (NT) s 41. 33 Hunter and New England Area Health Service [2009] NSWSC 761. 34 General Purpose Standing Committee No. 2 Elder abuse in New South Wales, Report 44 - June 2016,

Recommendation 7.

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All these were key developments in the area covered by the modern guardian system. Most of them were instigated by people closely associated in the guardianship tribunals, offices of Public Guardians/Advocates and Public Trustees in most, if not all, the States and Territories. 4. The elements of the modern Australian guardianship system as at October 2016 As a result of these and other developments, three elements of the modern Australia guardianship system came into being. The first was the creation of freestanding tribunals with jurisdiction either to be shared with or transferred from the Supreme Courts (and in the NT the Local Court) to those tribunals to appoint guardians and financial managers (administrators). They were empowered to appoint private guardians and financial managers (administrators) of appoint Public Guardians/Advocates as guardians or Public Trustees (however named) as managers of financial affairs (estates). These public institutions are fundamental to the operation of the system. Some of the tribunals have jurisdiction to act as substitute decision-makers for medical and dental consents. They all had jurisdiction to review the guardianship and administration orders they made. With the enactment of enduring guardianship legislation, the updating of the legislation relating to enduring powers of attorney and the growing confidence in the tribunals as a cheap but efficient and effective means of dealing with the increasing need for guardianship and administration orders, those tribunals were given jurisdiction to review the making and operation of the enduring documents, however named, made by individuals wishing to appoint their own substitute decision-makers. A third element was the enthusiasm for the “super” tribunals into which all or most State and Territory tribunals have been pressed regardless of the differing purposes for which they were created and the differing processes they need to follow in order to achieve the intended purposes for which they were established. While these amalgamations might make more sense in the smaller jurisdictions, whether they do in the larger jurisdictions is a matter to be determined by others, hopefully based appropriate evidence and analysis. In summary these elements are the institutional or structural parts of the system – the parts that either make and review orders or administer those orders. However, the making and continuation of orders, and how they are administered while they are in operation is controlled by the principles contained in the legislation. Decision-making capacity is presumed and has to be demonstrated to have been lost before any orders can be made appointing substitute decision-makers to make decisions relating to a person’s personal or financial matters. However there is more. The loss of decision-making capacity has to be shown to require intervention, because informal ways of dealing with the actually existing or immediately arising problems do not or will not work to overcome those problems. In other words there has to be a

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need for either kind of order, manifested in the evidence before the tribunal, before that order can be made. It is only the Western Australian tribunal (WASAT) that must make the best interests of the person the subject of the application its primary concern. Even then, it must not make an order if it is of the opinion that the needs of the person can be met by other means that are less restrictive of the person’s freedom of decision and action. Also it must not appoint a plenary guardian where a limited guardian would be sufficient and, when appointing a limited guardian or an administrator, impose the least restrictions on the person’s freedom of decision and action as is possible in the circumstances. 35 In clear contrast, the South Australian Act makes as the paramount consideration that SACAT has to put its mind to its opinion of what would be the wishes of the person if they were not mentally incapacitated – but, of course, only so far as there was reasonably ascertainable evidence on which to base that opinion. However other considerations required of SACAT are similar to those WASAT must put its mind to. When making either a guardianship or administration order or both, it must consider the adequacy of existing informal arrangements for the care of the person or the management of their financial affairs and to the desirability of not disturbing those arrangements. Any order that is made must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with their proper care and protection.36 In NSW, NCAT must give paramount consideration to the welfare and interests of the person they are considering making a guardianship or financial management order in relation to. However the order that it makes should restrict the freedom of decision and of action as little as possible. Consistent with that principle, the NSW Act provides that a plenary guardianship order shall not be made where a limited guardianship order would suffice.37 In Victoria and Tasmania there is a best interests requirement, but it is put differently from the WA provision. Neither VACT nor the Tasmanian Guardianship and Administration Board may make a guardianship or administration order unless it is satisfied that the order would be in the best interests the person. That is a different idea from the idea that the primary concern of the tribunal being the best interests of the person. However, like in WA and NSW neither tribunal may make a plenary guardianship order unless it is satisfied that a limited guardianship order would be insufficient to meet the needs of the person who the application is about. Also any limited guardianship made shall be the least restrictive of the person's freedom of decision and action as is possible in the circumstances.38

35 Guardianship and Administration Act 1990 (WA) s 4. 36 Guardianship and Administration Act 1993 (SA) s 5. 37 Guardianship Act 1987(NSW) s 4. 38 Guardianship and Administration Act 191986(Vic) s 22 and Guardianship and Administration Act 1995 (Tas)

s 20.

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The Queensland Act requires that before QCAT makes either a guardianship or an administration order, it must be satisfied that the person has impaired capacity for the matter and that there is a need for a decision about the matter or unreasonable risk in relation to the matter will or is likely to arise and, among other things, the person’s interests will not be adequately protected. Again, this is a different concept from the best interests concept in the WA Act.39 The relevant provisions of the ACT Act are very similar to those of the Queensland Act. However in the ACT the wording is; “the person’s interests will be significantly adversely affected”.40 The NT Guardianship of Adults Act, which empowers NTCAT to appoint guardians as substitute decision-makers in relation to both personal and financial matters, was enacted and brought into force in 2016. Before it may appoint a guardian, NTCAT has to be satisfied that the person has impaired decision-making capacity, that the effect of that impairment is that the person is unable to exercise decision-making capacity in relation to some or all personal or financial matters and the person is in need of a guardian for some or all of those matters. When determining whether the person is in need of a guardian, NTCAT must take a range of matters into account, including whether the person's needs could be adequately provided for in a way that is less restrictive of their freedom of decision and action than appointing a guardian.41 Mr Elferink the then Attorney-General and Minister for Justice in the NT pointed out in the second reading speech the Guardianship of Adults Bill 2016 sought to recognise the overall wellbeing, human rights and fundamental freedoms of persons with impaired decision-making capacity and align with the United Nations Convention on the Rights of Persons with Disabilities. He said it was a contemporary piece of legislation drafted to maximise the participation of adults with impaired decision-making capacity in decisions affecting them, and also in everyday life, and to provide guardians with more guidance and certainty about their role.42 The Act does do all those things. However, he also noted that the legislation required NTCAT, like other decision-makers exercising authority under the legislation, to exercise that authority in a way that NTCAT believed was in the best interests of the person the subject of the application. But in order to determine the person’s best interests, NTCAT had to seek and obtain the person’s current views and wishes, so far as it was practicable to do so and to take into account all relevant considerations. The Act provides a long but non-exclusive list of relevant considerations that reflect the principles in the legislation of the other Australian jurisdictions.43 Any consideration that NTCAT claimed was a matter of a person’s best interests would have to be

39 Guardianship and Administration Act 2000 (Qld) s 12. 40 Guardianship and Management of Property Act 1991 (ACT) ss 7 and 8. 41 Guardianship of Adults Act (NT) s 11. 42 Northern Territory Legislative Assembly Debates 12th Assembly, 1st session, 19 March 2016, Parliamentary

Record 28. 43 Guardianship of Adults Act (NT) s 4.

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identified and an explanation given as to why it was in that particular person’s best interests in relation to making a guardianship order. 5. Some issues raised by the “mechanics” of the current guardianship system 5. 1 The nature of the hearing process in the guardianship jurisdiction Most of the tribunals amalgamated into the “super” tribunals, the CATs and WASAT, deal with disputes between two parties, either private individuals as in tenancy or small claims disputes or between private individuals and government agencies as in challenges to governmental decisions affecting a particular person, for example a person who is refused a freedom of information application or where a complaint is brought against them by a government agency alleging unsatisfactory professional conduct or professional misconduct in the practise of their health profession. Guardianship matters are very different. They are not disputes between two parties who are arguing about contractual obligations (landlord and tenant disputes or building disputes) or who have differing interests at stake (FOI applications or disciplinary proceedings in which safety of the public and a person’s right to practise their profession are in conflict). Most applications to the CATs in their guardianship jurisdiction are brought by those who will not be directly affected by the outcome – people who make applications because of the kind of work they do(often health related) and family members who make applications because of the needs of a family member with substantial problems manifested by decision-making disabilities. Insofar as people involved in applications may gain something personally, it is secondary to the real purpose of the proceedings. There is only one person whose rights are at stake – the person the subject of the application. If the application is for both a guardianship and a financial management order, they are at risk of having their ability to make any personal or financial decisions for themselves taken away – a major of loss of rights that are an essential element of adulthood. As a consequence of these considerations, the nature of the hearing is entirely different from the dispute resolving processes of a court and of many tribunals. The people bringing the application, those presenting the evidence about what has to be proved, those with evidence about what should happen if the necessary findings are made and the question of whether orders are needed arises, and who should be appointed in those orders, are not there to win the case, but to assist in the process in bringing about the outcome that is necessary and appropriate to meet the current of foreseeable needs of the person the hearing is about. A hearing has to be run in a way that optimises the ability of the person the hearing is about to take part in it and to give their evidence and express their views about what the outcome of the hearing should be, if they are able to do so. It is incumbent on those responsible for running the proceedings to manifest this understanding of what the process is really about, and to do so in a number of ways.

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First the architecture of the hearing room. The layout of the room should make it clear that the purpose of the hearing is to determine with as little formality as is appropriate in the circumstances of the case if the person the subject of the application is a person for whom an order could be made and, if so, what the content of that order should be. So the room should have a large table in it so that people can sit around it and for others to be able to observe the proceedings and take part in them if necessary. Next the members (or member) of the tribunal must start the hearing by creating the non-adversarial atmosphere of the process and to continue that for the whole hearing. An appreciation of the fact that, on most hearings, those attending are there for altruistic purposes and not personal gain must also be made an undercurrent of the process and manifested by the way the tribunal members go about working through the different stages of the hearing process. That process includes checking what if any matters are in issue from the point of view of the attendees and then working through the matters the tribunal needs to be satisfied about before coming to its decision. In many cases there will be no dispute about the lack of capacity of the person the hearing is about, the problems that gave rise to the hearing and what orders, if any, need to be made. There may be some sorting out of who should be guardian and what decision-making functions are needed and who should be financial manager and how much of the person’s estate should be covered by the financial management order. Where there are differences of opinion about the orders needed and who should be appointed, the hearing should proceed on the basis that an agreement between those attending, subject to the tribunal being satisfied that what is agreed should be accepted, could emerge before all the evidence is taken. However, it must be clear that the tribunal has to be satisfied that what is proposed is consistent with the principles and requirements of the Act, particularly those requirements relating to the person the hearing is about. Even where there is conflict between the attendees, the evidence should be gathered in an inquisitorial way by the members to ensure that the key issues are covered and that there is evidence gathered in relation to all the matters that have to be covered before the tribunal can make the findings required before any order is made, or appreciate that there isn’t sufficient evidence to justify making the orders sought in the application. If people need to speak more than once to the tribunal to give it the information it needs, and speak in no particular order but according to the flow of the issues, then that should be done. Usually this can be done in situations of conflict, and it serves to show that the tribunal is interested in getting the best evidence upon which to base its findings. It also keeps open the possibility of settlement and allows the tribunal to deal subtly with repetition and irrelevance Wherever possible the person the hearing is about should be present at it. In any event, whenever it is possible their views should be sought. Whether this happens in the presence or the absence of the other attendees, or at another time, should be decided

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by the members hearing the matter according to what they consider to be the approach required in the circumstances of the particular case to give them the best chance of getting the actual views of the person. However, if it is clear that there is no need, say, to make a guardianship order, then there is no need to get the person’s views on that matter, particularly where there is conflict between members of the family. As can be seen from the above, which reflects actual tribunal practice, most matters coming to guardianship tribunals can be properly and effectively handled without lawyers representing the person the hearing is about or anyone else. It should be appreciated that the professional obligation of a lawyer representing a party at a hearing is to promote the outcome that their client desires. This is antithetical to the purpose of the guardianship jurisdiction which is about the needs of the person the hearing is about and not the needs of others. However, sometimes the circumstances of the particular case, including the difficulties of some family members to put their views either at all or in a way that is inconsistent non-adversarial approach that is required to ensure all involved in the process are treated with the appropriate courtesy, require the tribunal to grant leave to some or all of the parties to be represented by lawyers. Finally, it is fundament to remember that the requirements of procedural fairness vary according to the circumstances of each particular case. 5. 2 The role of reasons for decision in the guardianship jurisdiction In a joint judgment given in 2003 in the High Court, Gleeson CJ, Gummow and Kirby JJ noted that judges who are subject to appeal are obliged to give reasons for their decisions and continued: “Such reasons are, at once, necessitated by the right of appeal and enhance its utility”.44The Disability Services and Guardianship Act 1987 (NSW), as the Guardianship Act 1987 (NSW) was originally called stated that a decision of the [Tribunal] be in the form of an instrument in writing that included the reasons for the decision and signed by the member who presided at the sitting of the [Tribunal] at which the decision was made. It also provided that no decision of the [Tribunal] shall be vitiated merely because of any informality or want of form.45 It remained essentially in that form until it was replaced by the following provision in the Civil and Administrative Tribunal Act 2013 No 2 (NSW):

A written statement of reasons for the purposes of this section must set out the following:

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the [NCAT’s] understanding of the applicable law, (c) the reasoning processes that lead (sic) [NCAT] to the conclusions it

made.46

44 Fox vPercy [2003] HCA 22 [24]. 45 Disability Services and Guardianship Act 1987 (NSW) s. 68. 46 Civil and Administrative Tribunal Act 2013 No 2 (NSW) s 62(3).

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That provision relates to all written reasons provided by NCAT in the matters in which it provides them either on its own motion, upon request or because written reasons are statutorily required. In fairness, it is a provision that is worded like most provisions requiring reasons for decision to be provided. Is suitable for situations in which there is a dispute between parties and where one party “wins” by getting a decision in their favour and the other party “loses” the case. Applications for and reviews of guardianship and financial management orders are essentially about only one party – the person the hearing is about. Applications to NCAT in relation to the making or operation of enduring powers of attorney etc are essentially the same – it is the interests of the person who made the enduring power of attorney etc that are most affected by NCAT’s decision. So, in NSW, the tribunal with guardianship jurisdiction has always been required to give reasons for all its decisions in that jurisdiction, now there are some minor exceptions. In this regard it has been statutorily required to do what judges must do as a matter of common law. However, in the guardianship jurisdiction the writing decisions with an appeal in mind is the least consideration in providing the reasons. There are a number of other purposes that the providing of reasons serves. First the obligation to write reasons focusses the mind on where the evidence takes the tribunal, what decision should be made and why. The writing up on a decision soon reveals the flaws in a decision not justified by a confluence of the facts and the law. Second, it is not just to show why the losing party why they lost as suggested by the decision-writing guru, Prof. Diamond. It is written to explain to a number of different sorts of people who need to know for different reasons. These are the family members, particularly those who are current carers and those who made themselves available for appointment as a guardian or a financial manager. The reasons for decision are also useful to the person’s doctor and other health professionals, service-providers and others. As guardianship orders must be reviewed, the original reasons for decision are also helpful in setting out why the guardianship order was made in terms of the person’s decision-making disability and what was hoped to be achieved by making the order in the terms it was made. The reasons for decision must go through all the jurisdictional way-points dealing with those aspects of the way-point that are relevant in the particular case. It is unhelpful and confusing for those involved in the case because of familial, neighbourly or professional involvement with the person the hearing is about to have the applicable law set out except to show that those jurisdictional matters that were required to be considered in the context of the facts of the case were considered and applied. Those jurisdictional matters that were not relevant do not need to be referred to. The reasons for decision are for communication not for showing that the decision-makers were aware of the law in the area whether relevant to the case or not. There are other subtle things that the reasons for decision must seek to achieve. One important example of this is where there is a contest between family members as to who should be guardian or financial manager. While NCAT has to give reasons for

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who it chooses, it will often have to consider avoiding doing any more damage to family relations than the process necessarily has to do on some occasions. In family disputes the person the application and hearing are about usually will be the least skilled in overcoming emotional problems and the one most at risk of losing family connexions. The importance of preserving family relationships, or at least leaving open the possibility of them being repaired, is something that has to be borne in mind from time to time so that the reasons for not choosing one person or for preferring another, may need to be stated subtly in circumstances in which the initial reaction to the situation may be to state the matter with a clarity that would embarrass the person not appointed, in order to ensure that no appeal body missed the point.