Financial Guardianship Orders by hqs15688

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									Mr. George Damalas
Legal Officer
Guardianship Tribunal
Locked Bag 9
Balmain NSW 2041
Email: gt@gt.nsw.gov.au

30 November 2006


Dear George

Proposed Amendments to the Guardianship Act 1987 (NSW)

PWD‟s response to the Guardianship Tribunal‟s Discussion Paper, Proposed
Amendments to the Guardianship Act 1987 (NSW) follows.


1. Introduction: key safeguards are lacking

Proceedings before the Guardianship Tribunal (GT) contest the most
fundamental of all human and legal rights, namely the right of an individual to
autonomy and self determination; the right to say and choose for oneself how
one might live.

Proceedings before the GT also contest another important human right – the
right to protection for those who lack capacity to make certain decisions for
themselves.

There is therefore no more important or sensitive jurisdiction than that pertaining
to guardianship. The jurisdiction requires a delicate balancing between the rights
of people alleged to have decision-making disability, and their need for protection
through supported or substituted decision-making when found to have decision-
making disability.

Clearly, it would be totally unacceptable for the jurisdiction or the GT itself to
breach the human and legal rights of, or fail to offer adequate protection for, the
very vulnerable people whom the jurisdiction and the GT are intended to serve. It
follows that any initiatives that might affect the operation of that jurisdiction
demand the closest scrutiny.

It also follows that such initiatives must adhere to the highest of standards if they
are to prove adaptive to the demands of such an important and complex
jurisdiction. The standards that PWD shall observe in framing its response to the
Discussion Paper are those contained in various statements of universal human
rights to which Australia is a signatory, certain administrative law principles
relating to natural justice and procedural fairness within tribunal settings, and
certain legal principles relating to the law of capacity in NSW.

1.1 Human Rights

The key human rights statements underpinning PWD‟s response to the
Discussion Paper follow:

     All peoples have the right of self-determination. By virtue of that right they
     freely determine their political status and freely pursue their economic,
     social and cultural development. (Article 1 of the International Covenant on
     Economic, Social and Cultural Rights). Implied in this right is the prior right
     of a person (including people with disability) to make decisions and enter
     agreements necessary to enable the pursuit of the person‟s economic,
     social and cultural development.

     Whenever mentally retarded persons are unable, because of the severity of
     their handicap, to exercise all their rights in a meaningful way or it should
     become necessary to restrict or deny some or all of these rights, the
     procedure used for that restriction or denial of rights must contain proper
     legal safeguards against every form of abuse. This procedure must be
     based on an evaluation of the social capability of the mentally retarded
     person by qualified experts and must be subject to periodic review and to
     the right of appeal to higher authorities. (Paragraph 7, Declaration on the
     Rights of Mentally Retarded Persons, proclaimed by the General Assembly
     of the United Nations on 20 December 1971, a copy of which is set out in
     Schedule 4 to the Human Rights and Equal Opportunity Commission Act
     1986 (Cth)).

     Disabled persons shall be able to avail themselves of qualified legal aid
     when such aid proves indispensable for the protection of their persons and
     property. If judicial proceedings are instituted against them, the legal
     procedure applied shall take their physical and mental condition fully into
     account. (Paragraph 11, Declaration on the Rights of Disabled Persons,
     proclaimed by the General Assembly of the United Nations on 9 December
     1975, a copy of which is set out in Schedule 5 to the Human Rights and
     Equal Opportunity Commission Act 1986 (Cth)).

     Any decision that, by reason of his or her mental illness, a person lacks
     legal capacity, and any decision that, in consequence of such incapacity, a
     personal representative shall be appointed, shall be made only after a fair
     hearing by an independent and impartial tribunal established by domestic
     law. The person whose capacity is at issue shall be entitled to be
     represented by a counsel. If the person whose capacity is at issue does not
     himself or herself secure such representation, it shall be made available
     without payment by that person to the extent that he or she does not have


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    sufficient means to pay for it. The counsel shall not in the same proceedings
    represent a mental health facility or its personnel and shall not also
    represent a member of the family of the person whose capacity is at issue
    unless the tribunal is satisfied that there is no conflict of interest. Decisions
    regarding capacity and the need for a personal representative shall be
    reviewed at reasonable intervals prescribed by domestic law. The person
    whose capacity is at issue, his or her personal representative, if any, and
    any other interested person shall have the right to appeal to a higher court
    against any such decision. (Paragraph 6, Principles for the protection of
    persons with mental illness and the improvement of mental health care
    adopted by General Assembly resolution 46/119 of 17 December 1991).

    Mental health legislation (or other relevant legislation) can lay down the
    procedure for determining a person’s competence. For example:
    a) As competence is a legal concept, a judicial body would determine this.
    b) Ideally, a legal counsel should routinely be made available to a person
    whose competence is in question. Where a person is unable to afford a
    counsel, legislation may require that counsel be provided to the beneficiary
    free of charge.
    c) Legislation should ensure there is no conflict of interest for the counsel.
    That is, the counsel representing the concerned person should not also be
    representing other interested parties, such as the clinical services involved
    in the care of the concerned person and/or the family members of the
    concerned person.
    d) Legislation may have provisions to appeal to a higher court against the
    decision by the concerned person, the counsel, family members or clinical
    team.
    e) Legislation should contain a provision for automatic review, at specified
    periodic intervals, of the finding of lack of competence. (Resource Book on
    Mental Health, Human Rights and Legislation, World Health Organisation,
    2005, p.39).

1.2 Administrative Law Rights

The key administrative law rights underpinning PWD‟s response to the
Discussion Paper are well summarised in the following excerpt from the
Administrative Review Council‟s Guide to Standards of Conduct for Tribunal
Members, 2001:

    The right to be heard

    A fundamental requirement of the rules of natural justice is that a party
    whose rights, property or legitimate expectations may be affected by an
    administrative adjudication has the right to be heard.




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     However, there are no fixed rules governing the form of procedure to be
     adopted in all cases:

     There are...no words which are of universal application to every kind of
     enquiry and every kind of domestic tribunal. The requirements of natural
     justice must depend on the circumstances of the case, the nature of the
     inquiry, the rules under which the tribunal is acting, the subject matter being
     dealt with and so forth. (Tucker LJ in Russell v Duties of Norfolk [1949] 1 All
     ER 109 at 118 (CA))….

     Particular obligations for a tribunal member beyond those arising
     legislatively or administratively flow from:

      the application of the principle to unrepresented parties;
      the investigative nature of tribunals and the initiative given to members to
     obtain evidence in any way they see fit;
      the capacity of tribunal members to rely on specialist knowledge (of their
     own, or of other tribunal members).

     Unrepresented parties

     The application of this principle to unrepresented parties requires some
     consideration. In particular, it was noted during consultation that although
     ‘afforded an opportunity to put their case’, an unrepresented party may be
     unable to seize that opportunity. In such circumstances, compliance with
     this principle may require a more proactive response from tribunal
     members. There is, of course, a counter responsibility to ensure that such a
     response does not give rise to an apprehension of bias….

     Reliance on specialist knowledge

     If tribunal members feel the need to rely on their own expertise or that of
     other tribunal members, this must be disclosed to the parties to enable them
     to respond. Members should be careful not to stray out of their own area of
     expertise….

1.3 Presumption of Capacity

The operation of both legislation and the common law creates a presumption of
capacity under the law in NSW.

At common law, an adult is presumed to have the capacity to make his or her
own decisions unless incapacity to make that particular decision is established.
Capacity is therefore presumed (upon reaching the age of 18) in areas as diverse
as getting married, entering into contracts, making gifts, or writing a valid will.




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In Dalle-Molle (By His Next Friend Public Trustee) v Manos, [2004] SASC 102,
Debelle J stated that the presumption of capacity continues to apply where it is
alleged that a person lacks the required mental capacity to properly participate in
a certain function or decision, so that those who assert incapacity bear the onus
of proof .

Under the Guardianship Act 1987 (NSW) (GA), a person must be proven to be
incapable of managing his or her affairs before a substitute decision-maker is
appointed. A presumption of capacity is therefore implicit in both the operation of
the GT and the implementation of the GA.

1.4 Summary: key safeguards are lacking

An analysis of the GA in its current (pre-amendment) form against the above
norms and standards indicates a concerning lack of certain fundamental rights
and safeguards for people with disability. Notwithstanding its other positive
features (such as the multi-member, multi-disciplinary Guardianship Tribunal),
the GA currently lacks:

      a clear statement of the legal presumption in favour of capacity for adults;
      a clear statement that all people subject to a guardianship or financial
       management order retain the right to freely pursue their economic, social
       and cultural development (implicit in which is the right of such people to
       seek review, complain, or appeal against any aspect of the operation of
       the guardianship regime);
      a clear obligation on the Guardianship Tribunal to engage in periodic
       review at specified reasonable intervals of all guardianship-type orders,
       including financial management orders;
      a clear statement that a person whose capacity is at issue shall be entitled
       to be represented by an independent advocate without any conflict of
       interests, and that if the person whose capacity is at issue does not
       himself or herself secure such representation, it shall be made available
       without payment by that person; and
      a clear statement recognizing that for people whose capacity has been
       found in issue, rights of complaint, review or appeal, and to be heard, may
       be meaningless unless independent advocacy support is provided to the
       person to support them to consider and access those rights.

PWD regards these legislative and programmatic deficiencies as serious, and in
need of urgent attention. Indeed, PWD believes that a much stronger argument
can be made in favour of amending the GA to address these deficiencies rather
than some of the currently proposed amendments.

PWD is not alone in identifying the need for additional safeguards within the GA
and GT. The Law and Justice Foundation recently surveyed the legal needs of
older people in NSW, and comments:


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     Where an older person has failed to prearrange substitute decision-making,
     the Guardianship Tribunal has the power to appoint a guardian or financial
     manager to make decisions for that person. The following concerns have
     been expressed regarding this process:

           concerns about mismanagement, delays and fees, and the
            processes used to assess incapacity;

           lack of automatic right of representation before the Guardianship
            Tribunal, and lack of advocacy services to assist people with the
            Tribunal;

           lack of accessible review mechanisms of Guardianship orders made
            by the Tribunal. (http://www.lawfoundation.net.au/report/older)

In light of the lack of these key safeguards, and notwithstanding that NSW can be
proud of much of the operation of its guardianship regime to date, PWD is
reluctant below to indicate acceptance of any of the proposed amendments to
the GA that in our view may further undermine fundamental rights and freedoms
and limit essential safeguards for people with disability.


2. Should the Guardianship Act 1987 (NSW) allow, at the President’s
discretion, fewer than three (3) members to hear reviews of guardianship
and financial management orders and applications for major medical or
dental treatment? If so, what safeguards are needed in such a system?

PWD is strongly opposed to this proposal for amendment as in our view it serves
to undermine one of the greatest safeguards within the GA: the multi-member,
multi-disciplinary tribunal.

Strong and effective safeguards are clearly necessary in any system that impacts
on people‟s rights, even more so when the system is an informal, essentially
inquisitorial one in which people with decision-making disability are generally not
independently represented. For the GT these safeguards are in part provided by
the independence of the Tribunal, the three member Tribunal system, and the
expertise and experience of Tribunal members.

The multi-member, multi-disciplinary system is a safeguard for the protection and
promotion of the rights and interests of people with disability. In what is
essentially an informal process it is crucial that the decision-makers know what to
ask, how to ask it, how to communicate best with the person with disability, and
how to evaluate the diverse material before them which may be medical, legal,
financial,   psychological,    psychiatric,     neurological,    dental,  personal,
developmental or ethical in nature.


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     The Tribunal’s three members: a legal member, a professional member and
     a community member ensure that a wide range of professional views and
     expertise as well as a strong family and community perspective is applied to
     the questions of guardianship, financial management and medical consent.
     (Guardianship Tribunal Annual Report, 2004/2005, p.7)

PWD does not consider that a single-member panel or a two-member panel can
adequately hear and determine reviews of guardianship and financial
management orders and applications for major medical and dental treatment.
Further, while respecting greatly the contributions made by the GT‟s Presidents
over time, PWD does not consider it appropriate to leave the determination of
tribunal composition to the President‟s discretion.

Funding and independence

PWD is concerned that funding limitations confronting the GT will over time
operate to influence the exercise of a President‟s discretion in favour of a
reduced Tribunal more frequently than would be the case if adequate funding
was provided to the Tribunal (that reflects its current workload and the increase
in demand occurring as a result of the ageing and disablement of the population).
Clearly the threat of such a trend developing has real implications for the
maintenance of the GT‟s independence in its decision-making and as against its
funder.

Rather than undermine important safeguards, and potentially the community‟s
confidence in the operations, independence and integrity of the GT, PWD calls
for the GT to be adequately funded to fulfill its mandate and to ensure its growth
coincides with no lack of confidence. PWD is aware, for example, that in
Queensland experienced and reputable disabled persons‟ organisations have
lost considerable confidence in their Tribunal sitting frequently as a single
member.

Expertise and integrity

PWD is also very concerned that this proposal for amendment would permit the
GT to be constituted by one or two members without adequate breadth of
expertise.

It was for very good reason that the disability sector advocated most strongly for
a multi-member and multi-disciplinary GT, and got it in the GA. Presiding
members of the Tribunal must be legal practitioners with a minimum seven years
experience. Professional members must have extensive professional experience
in treating or assessing people with disabilities, and are often doctors, social
workers or psychologists. And Community members are appointed on the basis
of their lived experience of disability.



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Each of these members performs an important function and none of them alone
or even with the support of one other can replicate the full range of expertise,
benefits and safeguards that comes with a fully constituted Tribunal as currently
required.

As indicated above, in what is essentially an informal process in which the most
important person is usually unrepresented, it is crucial that the decision-makers
know what to ask, how to ask it, how to communicate best with the person with
disability, and how to evaluate the diverse material before them which may be
medical, legal, financial, psychological, psychiatric, neurological, dental,
personal, developmental or ethical in nature. PWD does not consider that this
task can be undertaken by anything other than a full Tribunal constituted by
people with the breadth of expertise currently provided for.

Indeed, to attempt to reduce the composition of the Tribunal will serve to bring
into question the merits of many decisions, particularly so when it appears to an
interested party that the single or two-member Tribunal „strayed out of their own
area of expertise‟ and into that area of expertise that would otherwise have been
the domain of the missing member(s). (see above: Administrative Review
Council‟s Guide to Standards of Conduct for Tribunal Members).

Reviews of guardianship and financial management orders

PWD does not accept that applications for review are prima facie any less
substantive or potentially complex than initial applications, and believes that until
all people with disability are independently represented at all GT hearings
involving them the full nature and complexity of issues for many such people,
especially at the review stage, is unlikely to be evident to the Tribunal. For this
reason we do not support the proposition that applications for review are any less
deserving of attention by a fully constituted tribunal than initial applications.

The requirement for regular review of orders is recognised as a fundamental
human right of all persons subject to guardianship (see above). This fundamental
human right is already routinely breached under the auspices of the GA
whenever the GT makes a financial management order that is not time limited. It
will be experienced in the breach even more should the Tribunal be authorised to
make the many more non-reviewable orders that it proposes to make (below).

Until such time as the GA imposes, consistent with international legal obligations,
a clear duty on the GT to engage in periodic review at specified reasonable
intervals of all guardianship-type orders (other than specific orders made under
Section 16 (2A)), including financial management orders, we can see no valid
social policy purpose served by this proposal which will serve to further
undermine the valued safeguards provided by the multi-member and multi-
disciplinary Tribunal.



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Major medical or dental treatment

Major medical or dental treatment is defined within the Guardianship Regulation
2005 (NSW) as follows:

    10 Major medical treatment

    The following medical treatment (not including any special treatment) is
    declared to be major treatment for the purposes of Part 5 of the Act:
    (a) any treatment that involves the administration of a long-acting injectable
    hormonal substance for the purpose of contraception or menstrual
    regulation,
    Note: An example of such a substance is medroxyprogesterone acetate, in
    suspension, commonly known as Depo-Provera.
    (b) any treatment that involves the administration of a drug of addiction,
    (c) any treatment that involves the administration of a general anaesthetic or
    other sedation, but not treatment involving:
    (i) sedation used to facilitate the management of fractured or dislocated
    limbs, or
    (ii) sedation used to facilitate the insertion of an endoscope into a patient‟s
    body for diagnostic purposes unless the endoscope is inserted through a
    breach or incision in the skin or a mucous membrane,
    (d) any treatment used for the purpose of eliminating menstruation,
    (e) any treatment that involves the administration of a restricted substance
    for the purpose of affecting the central nervous system, but not a treatment:
    (i) involving a substance that is intended to be used for analgesic,
    antipyretic, antiparkinsonian, anticonvulsant, antiemetic, antinauseant or
    antihistaminic purposes, or
    (ii) that is to be given only once, or
    (iii) that is a PRN treatment (that is, given when required, according to the
    patient‟s needs) that may be given not more than 3 times a month, or
    (iv) given for sedation in minor medical procedures,
    (f) any treatment that involves a substantial risk to the patient (that is, a risk
    that amounts to more than a mere possibility) of:
    (i) death, or
    (ii) brain damage, or
    (iii) paralysis, or
    (iv) permanent loss of function of any organ or limb, or
    (v) permanent and disfiguring scarring, or
    (vi) exacerbation of the condition being treated, or
    (vii) an unusually prolonged period of recovery, or
    (viii) a detrimental change of personality, or
    (ix) a high level of pain or stress,
    (g) any treatment involving testing for the human immuno-deficiency virus
    (HIV).


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     11 Major dental treatment

     The following dental treatment is declared to be major treatment for the
     purposes of Part 5 of the Act:
     (a) any treatment involving the administration of a general anaesthetic or
     simple sedation,
     (b) any treatment intended, or likely, to result in the removal of all teeth,
     (c) any treatment likely to result in the patient‟s ability to chew food being
     significantly impaired for an indefinite or prolonged period.

Given the serious and complex nature of the above list of major treatments and
the obvious medical, dental, factual, evidential, personal, developmental and
ethical issues that would arise for any decision-maker in respect of them, and
given also the inadequacy of safeguards provided within the GA (discussed
above), PWD is frankly astounded at the notion that any of the above treatments
might be appropriate for authorisation by anything less than a full Tribunal calling
upon the special expertise of each member.

Rather, consideration should be given to employing a small staff of full-time
Professional and Community members to sit with the President or Deputy
President or other Presiding member in the hearing of these matters, the majority
of which are dealt with in Balmain or by teleconference conducted from Balmain,
thus permitting ease of listing and urgent hearings as necessary. PWD considers
that the employment of one full-time Professional and one full-time Community
member would create efficiencies, and that the salary of each would in large
measure be off-set by a reduction in fees paid to part-time members as a result
of the work undertaken by the new full-time staff.

If indeed some „major treatment‟ hearings are in fact not complex, the
maintenance of a full Tribunal staffed with the additional full-time complement
would ensure both that these particular cases are dealt with effectively and
efficiently, and in systemic terms that no tendency develops within the GT to treat
any application for „major treatment‟ with less than full consideration.


3. Should the possible maximum term of appointment for members of the
Guardianship Tribunal be extended from three (3) to five (5) years?

PWD has no objection to this proposed amendment and endorses the reasoning
for it contained in the Discussion Paper.


4. Should the Guardianship Tribunal have increased flexibility to make non-
reviewable guardianship orders where appropriate?



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PWD strongly objects to the proposal that the GT have increased flexibility to
make non-reviewable guardianship orders.

PWD acknowledges that non-reviewable financial management orders are often
the norm for the GT. This however should lend no support to the proposition that
guardianship orders should be treated similarly. Indeed, as discussed above,
regular review of all forms of guardianship orders (personal and financial) is a
fundamental human right, and in failing to so provide with respect to financial
management orders the GA merely authorizes without good reason a systematic
breach of the human rights of all persons subject to non-reviewable financial
management orders. PWD is most concerned to see to it that a similar
systematic breach of human rights is not imposed upon the many more who are
subject to a (non-financial) guardianship order.

PWD considers the argument advanced in respect of the need to amend Section
16 (2A) to be weak. Indeed, PWD does not accept that there is any great
difficulty in characterising the decisions or actions required for „Mary‟ in either
example as being „specific‟.

Further, PWD regards the proposed amendment as going too far. While not
accepting of any derogation from the right of people with disability to access
periodic review at specified reasonable intervals of all guardianship-type orders,
including financial management orders, PWD believes that the concerns of the
GT in respect of its members‟ use of Section 16 (2A) could largely be dealt with
through education and training directed to this issue. PWD would be happy to
work with the GT on this matter.

PWD does acknowledge, however, the GT‟s concern to make the experience of
people with disability at the GT as „least restrictive‟ and as least threatening as
possible. We would be happy to explore with the GT other ways to reduce the
impact of GT proceedings on people with disability that do not undermine hard
fought for human rights.

However, it does remain likely that the greatest restriction or threat is that which
would be imposed upon people with disability by removing their legitimate
expectation and human right to regular statutory reviews, and thereby shifting the
onus on to these most vulnerable people to apply of their own motion for a
review.

In light of the increased barriers to the hearing of reviews represented by certain
proposals to expand the Registrar‟s powers in this area (see below) and the
general lack of advocacy support for most such persons, PWD can only be
pessimistic about the future of reviews and the rights of people with disability in
this context should this proposal proceed.




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5. Should the Registrar of the Tribunal be able to exercise the procedural
functions discussed in the Discussion Paper? Should the Registrar have
the authority to determine that no further action be taken in relation to
applications?

PWD has no objection to the first five amendments proposed at page 23 of the
Discussion Paper, and endorses the reasoning for them contained within it.
These amendments would permit the Registrar to exercise the following
procedural functions:

      recognising the appointment of interstate guardians and/or financial
       managers;
      determining whether Guardianship Tribunal proceedings should be closed
       to the Public;
      determining whether to consent to the publication or broadcasting of the
       name of any “prescribed person”;
      determining whether to require that a person appear before the Tribunal to
       give evidence and if so issuing an instrument in writing to that effect;
      determining whether to require that a person produce relevant documents
       to the Tribunal and if so issuing an instrument in writing to that effect.

PWD also has no objection to the first two amendments proposed at page 25 of
the Discussion Paper and similarly endorses the reasoning for them. These
amendments would permit the Registrar not to list an application where:

      the application clearly relates to a situation which is outside the jurisdiction
       of the Tribunal, e.g. the person is deceased or under 16 years of age;
      the application is submitted but the applicant refuses or fails to provide
       necessary information to support the application, and fails to respond to
       correspondence from the Tribunal and attempts by the Tribunal to contact
       the applicant are unsuccessful.

PWD strongly objects, however, to the remaining amendments proposed in the
Discussion Paper, namely:

      the Registrar determining whether he/she should refuse a request for a
       review of a guardianship order if in the opinion of the Registrar the request
       does not disclose grounds that warrant a review, or the Tribunal has
       previously reviewed the order;
      the Registrar determining whether he/she should refuse to review a
       financial management order on receiving an application to revoke or vary
       a financial management order if in the opinion of the Registrar, the
       application does not disclose grounds that warrant a review, or the
       Tribunal has previously reviewed the order;
      the Registrar declining to list a matter for hearing before the Tribunal
       because the issues raised by the application are subsequently resolved by


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       all concerned but the Registrar is unable to obtain a withdrawal request
       from the applicant.

PWD‟s objections to these amendments are on the bases that:

      these amendments are substantive in nature, and not procedural, in as
       much as the requirement for regular review of orders is recognised as a
       fundamental human right of all persons subject to guardianship (see
       above). This fundamental human right is already routinely breached under
       the auspices of the GA whenever the GT makes a financial management
       order that is not time limited. It will be experienced in the breach even
       more should the Tribunal be authorised to make the many more non-
       reviewable orders that it proposes to make (above). Set against this back-
       drop it is difficult to see how requests for review can realistically be
       dismissed as mere „procedure‟. The success or otherwise of an
       application for review is always a determination of important substantive
       rights and issues;
      these amendments undermine the accountability of the Tribunal to the
       most vulnerable within society, those who through disability are alleged
       (or held) incapable of managing their person or affairs. In PWD‟s view
       such persons must remain entitled and indeed be not further discouraged
       from bringing applications for review. Circumstances change and
       guardianship and financial management orders needn‟t be forever; the
       Tribunal‟s having previously reviewed an order is therefore insufficient
       reason for it not to consider an order again at a subsequent time. Indeed,
       in PWD‟s view the right of many people subject to guardianship and
       financial management orders to seek review has been experienced by
       them as a right in name only, with lack of independent advice and
       advocacy support undermining their access to this right;
      these amendments also undermine the ability of people subject to a
       guardianship or financial management order to exercise their rights to
       freely pursue their economic, social and cultural development through
       seeking review and variation to pre-existing orders. As such they will be
       seen and experienced by many people with disability as disempowering
       and unnecessarily controlling. In particular, many people with disability
       will be reluctant to accept the decision of the Registrar on these matters
       because of the perception that the position is not appropriate to determine
       applications involving personal and fundamental rights issues and where
       there is an expectation that such matters should be determined by a
       quasi-judicial body at least;
      these amendments also fail to acknowledge that for many people subject
       to an order (and without the benefit of independent advocacy support),
       their applications or requests for review are more likely than otherwise to
       be inadequately presented and to therefore not disclose grounds that
       warrant a review. It would be grossly inappropriate to in effect hold this
       against them; and


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       in respect of the last amendment, it would appear extremely problematic
        to assert that all issues in an application have been resolved where an
        applicant will not lodge a withdrawal request. This is especially so where
        the person with disability has not had the benefit of independent advocacy
        support to assist them in assessing the issues, and any others that the
        person with disability might raise if provided with independent advocacy
        support. Further, the withdrawal request may be withheld precisely
        because in the mind of the applicant all issues have not been resolved.
        The habitual compliance of many people with decision-making disability,
        and their vulnerability to duress suggests to us that a more cautious
        approach is required than that proposed.


6. Additional safeguards required

While the GA as a whole, and particularly Section 4 entitled „General principles‟
can be seen in part as a response to the human rights obligations expressed
above, strangely and with one notable exception (Section 58: providing for a right
of representation on application; cf. Section 65, Protection of Personal and
Property Rights Act 1988 (NZ)), the GA does not in fact expressly refer to the
„human rights‟ or „legal rights‟ or „rights‟ of people with disability at all. This
suggests perhaps that in the context of the GA the delicate balance referred to at
the beginning of this response is tipped somewhat in favour of „protection‟ at the
expense of „rights‟ and that a slight re-balancing is called for. Indeed, our
responses above can be clearly seen as an effort to resist a further undermining
of the fundamental rights and freedoms of people with decision-making disability
while doing no harm to their right to protection.

In PWD‟s view the GA requires:

       a clear statement of the legal presumption in favour of capacity for adults;
       a clear statement that all people subject to a guardianship or financial
        management order retain the right to freely pursue their economic, social
        and cultural development (implicit in which is the right of such people to
        seek review, complain, or appeal against any aspect of the operation of
        the guardianship regime);
       a clear obligation on the Guardianship Tribunal to engage in periodic
        review at specified reasonable intervals of all guardianship-type orders
        (other than specific orders made under Section 16 (2A)), including
        financial management orders;
       a clear statement that a person whose capacity is at issue shall be entitled
        to be represented by an independent advocate without any conflict of
        interests, and that if the person whose capacity is at issue does not
        himself or herself secure such representation, it shall be made available
        without payment by that person; and



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       a clear statement recognizing that for people whose capacity has been
        found in issue, rights of complaint, review or appeal, and to be heard, may
        be meaningless unless independent advocacy support is provided to the
        person to support them to consider and access those rights.

Due to current funding restraints, many advocacy services are unable to provide
full and comprehensive advocacy services to support people in their decision-
making generally and at the GT in particular. Often, there are extensive waiting
lists for such services.

We submit that the GA should ensure/require the provision of a trained,
independent advocate for every person whose capacity is in question in
proceedings before the GT. The role of the advocate would be to help a person
to understand their options and to convey their views. It would not be the role of
an advocate to make decisions for the person but to provide support and
facilitate the person‟s decision-making to the greatest extent possible. Clearly,
funding of such advocacy support over and above that already provided is the
responsibility of the NSW Department of Ageing, Disability and Home Care.

In light of this, we submit that the GA should be specifically amended to:

(a) Ensure/require the provision of an advocate to support a person whose
capacity is in question including support:

       (i) To enhance the person's capacity to avoid the appointment of a
       substitute decision-maker if possible;
       (ii) To challenge the suggestion that the person lacks capacity if the person
       whose capacity is in question wishes to so challenge, including assisting
       with obtaining and evaluating information on behalf of the person and
       obtaining further opinions if required; and
       (iii) To make representations about the person‟s wishes, feelings, beliefs
       and values and bring to the attention of the Tribunal all factors that are
       relevant to the decision during the Tribunal hearing.

(b) Create and ensure funding for a panel of authorised report writers prepared to
provide expert capacity assessment reports on behalf of people whose capacity
is in question and who wish to challenge that suggestion.

As stated earlier, PWD also believes that consideration should be given to
employing a small staff of full-time Professional and Community members to sit
with the President or Deputy President or other Presiding member in hearings,
and to providing sufficient funding to the GT to enable it to do its important work
without diminishing the legitimate rights and expectations of its major
stakeholders: people with decision-making disability.




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We thank you for this opportunity to respond to your Discussion Paper, Proposed
Amendments to the Guardianship Act 1987 (NSW).

Yours sincerely




Matthew Keeley                                Alastair McEwin
Senior Legal Officer                          Chief Executive Officer




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