Chapter 7 The functions and powers of guardians

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1 Chapter 7 The functions and powers of guardians Contents Introduction Introduction The function or powers given to guardians and the duties that go with them New South Wales Victoria Queensland Western Australia South Australia Tasmania Australian Capital Territory Duties and responsibilities of guardians Guardians must apply the legislative principles Guardians must act honestly and with reasonable diligence Guardians must act in the best interests of the person under their guardianship A guardian s obligations and the views of the person under guardianship Guardians must act as required by terms of the order appointing them Restrictions on the functions or powers of a guardian No power to discipline person under guardianship No power to vote in an election for the person under their guardianship No power to make a will or other testamentary instrument for the person under their guardianships No power to consent to the adoption of a child on behalf of the person under their guardianship No power to consent to a marriage on behalf of the person under their guardianship The functions/powers of guardians Advocacy Accommodation Health Care Medical and dental consent Services Access Behaviour intervention and support

2 Restriction of the freedom of movement of and consent to other restrictive practices in relation to those a who has been in trouble with the criminal law or others with an intellectual disability Restrictive practices in legislation in Queensland and Victoria A guardian to make decisions about religious observance Miscellaneous functions or powers The ancillary powers of guardians Directions (and advice) to guardians Case law on directions to guardians Introduction This chapter sets out the functions or powers given to guardians by legislation in some of the States and the Australian Capital Territory. It also discusses the functions or powers commonly given to guardians when they are appointed by tribunals as well as less commonly given functions or powers. The chapter also discusses the duties of guardians and the matters that guardians are barred by legislation from appointing guardians to make decisions about. It suggests that those duties and matters legislated for in some States and the Australian Capital Territory apply equally to guardians in the other States and the Northern Territory where they are not legislated for The function or powers given to guardians and the duties that go with them The functions or powers that may be given to guardians are described by different words in the different legislation of the different States and Territories. In order to clarify the terms used in rest of the chapter, it is useful to set out the way in which those functions or powers are given by the relevant legislation New South Wales In New South Wales, guardians are given functions. A plenary guardian has all the functions that a guardian has at law or in equity, while a limited guardian has one or more of those functions as set out in the order. 1 In New South Wales, a plenary guardian has custody of the person under their guardianship to the exclusion of all others while a limited guardian has custody of the person under their guardianship to extent set out in the order. 2 Both plenary and limited orders may contain conditions. 3 1 Guardianship Act 1987 (NSW) ss 16(2)(b), 21(1)(b) and 21(2A). Relying on the authority of late 19 th and early 20 th century textbook writers, Powell J referred to the broad powers and duties of the committee of the person (the guardian) of a person of unsound mind in F v R (unreported, Supreme Court of NSW, Powell J, 2 May 1986), BC , Guardianship Act 1987 (NSW) ss 16(2)(a) and 21(1)(a). 3 Ibid. ss 16(1) and 21(1).

3 Victoria In Victoria, guardians are given powers and duties. A plenary guardian has all the powers and duties a plenary guardian would have if they were a parent and the person under their guardianship were their child. 4 A limited guardian has such of those powers and duties as are specified in the guardianship order. 5 Nevertheless, some of these powers are set out in the Guardianship and Administration Act 1986 (Vic) as follows: 1. to decide where the person under guardianship is to live, whether permanently or temporarily, 2. to decide with whom that person is to live, 3. to decide whether that person should or should not be permitted to work and, if so, the nature or type of work, for whom they are to work and related matters, 4. to consent to any health care that is in their best interests, subject to limitations on this power elsewhere in the Act, and 5. to restrict visits to them to the extent necessary in their best interests and to prohibit visits by any person if the guardian reasonably believes that such visits would have an adverse effect on the person under guardianship Queensland In Queensland guardians may exercise power for a personal matter, that is make all decisions about the personal matter and otherwise exercise the power. They may, to the extent authorised by the order appointing them, do anything in relation to a personal matter that the person under guardianship could do if they had capacity. 7 The statutory list of personal matters that Queensland appointed guardians may make decisions about is not exhaustive. It contains the first four powers in the Victorian list, and the fifth power in the Victorian, the access power, has been held to be a personal matter in Queensland. 8 The Queensland list also includes: 1. deciding whether the person under guardianship applies for a licence or permit, 2. day-to-day issues, including, for example, diet and dress, 3. deciding whether to consent to a forensic examination of the of the person under guardianship 4 Guardianship and Administration Act 1986 (Vic) s 24(1). 5 Ibid. s 25(1). 6 Ibid. s 24(2). 7 Guardianship and Administration Act 2000 (Qld) ss 33(1), 35 and 36 and Schedule 2, item 2 and Schedule 4. 8 VJC v NSC [2005] QSC 68 [29].

4 4 4. making decisions about a legal matter not relating to their financial or property matters. 9 The statutory functions and powers of guardians in Queensland will be returned to later in this chapter as those provisions set out responsibilities and duties of guardians that are relevant to guardians in the other States and Territories Western Australia In Western Australia guardians are given functions. A plenary guardian has all the functions in relation to the person under their guardianship that are, under the Family Court Act 1997 (WA), vested in a person in whose favour has been made: 1. a parenting order which allocates parental responsibility for a child, 2. a parenting order which provides that a person is to share parental responsibility for a child, as if the person under their guardianship were a child lacking in mature understanding. However, a plenary guardian does not have the right to chastise or punish the person under their guardianship. 11 A limited guardian has one or more of the functions of a plenary guardian that are set out in the guardianship order. 12 As in Victoria, some of these powers are set out in the Guardianship and Administration Act 1990 (WA). The first four functions are the same as the first four powers in Victoria, but Western Australian guardians have, as plenary guardians, or may be given as limited guardians, the following functions: 1. to decide what education and training the person under their guardianship is to receive, 2. to decide with whom that person is to associate, 3. as the next friend of that person, commence, conduct or settle any legal proceedings on their behalf, except proceedings relating to their estate, and 4. as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the person under their guardianship, except proceedings relating to the estate of that person Guardianship and Administration Act 2000 (Qld) Schedule 2, s See, ,. 2 and. 4, and. 5 and.6 and Guardianship and Administration Act 1990 (WA) s 45(1). 12 Ibid. s Ibid. s 45(2)(e) to (h).

5 5 These functions, together with the Victorian powers, will be discussed later in the chapter as they are functions that, with reservations in some cases, may be exercised in at least some of the other States and Territories. 14 Also, the Guardianship and Administration Act 1990 (WA) sets out a list of things a guardian cannot do. 15 This issue will be discussed later in the chapter. 16 In Western Australia if an occupier or a person in charge of premises refuses to allow the guardian to enter those premises where the person under their guardianship is present, the guardian may apply to the State Administrative Tribunal (WASAT) for a warrant to enter those premises in order to perform any function in relation to the person under their guardianship or to discover whether the person under their guardianship is on those premises South Australia In South Australia, guardians are given powers. A guardian with full powers has all the powers that a guardian has at law or in equity, while a limited guardian has one or more of those powers as set out in the guardianship order. 18 In addition, the Guardianship Board may direct that the person under guardianship live with a specified person or in a specified place or it may empower the person s guardian to make decisions about the placement or detention of the person under their guardianship. 19 This matter is taken up later in the chapter Tasmania In Tasmanian legislation is virtually identical with the Victorian Act. It provides that guardians have powers and duties. A full guardian has all the powers and duties which a full guardian would have in Tasmania if they were a parent and the person under guardianship were their child. 21 A limited guardian has such of those powers and duties as are specified in the guardianship order. 22 Some of these powers are set out in the Guardianship and Administration Act 1995 (Tas). 23 They are the same powers as are set out in the Guardianship and Administration Act 1986 (Vic) Australian Capital Territory In the Australian Capital Territory, guardians are given powers, namely the powers that the ACT Civil and Administrative Tribunal (ACAT) is satisfied are 14 See 7.5 and following. 15 Guardianship and Administration Act 1990 (WA) s 45(3). 16 See 7. 4 and following. 17 Guardianship and Administration Act 1990 (WA) s Guardianship and Administration Act 1993 (SA) s Ibid. s See Guardianship and Administration Act 1995 (Tas) s 25(1). 22 Ibid. s 26(1). 23 Ibid. s 25(2). 24 Guardianship and Administration Act 1986 (Vic) s 24(2).

6 6 necessary or desirable for the guardian to have in order to make decisions for the person under guardianship in accordance with the decision-making principles. 25 Again, as in Victoria, Western Australia, Tasmania and the Northern Territory, some of the powers of a guardian are set out in the Guardianship and Management of Property Act 1991 (ACT) The first five of these are effectively the same powers as those set out in the Guardianship and Administration Act 1986 (Vic). 26 The final power is to bring or continue legal proceedings for or in the name of the person under guardianship. 27 Also, the Guardianship and Management of Property Act 1991 (ACT) sets out a list of powers that a guardian cannot be given. 28 This list will be set out and discussed later in the chapter. 29 As already noted in Chapter 6, the Public Advocate has an obligation, if appointed as the guardian, to endeavour to find a suitable (private) person to be appointed as the guardian of the person under the Public Advocate s guardianship. If such a suitable person is found, the Public Advocate is required to apply to ACAT for the appointment of that person as guardian Northern Territory In the Northern Territory, following the Victorian model, guardians are given powers and duties. A full guardian has all the powers and duties which a full guardian would have if they were a parent and the person under guardianship were their infant child. 31 Under a conditional order, a guardian has such of those powers and duties as are specified in the order. 32 Again, following the Victorian model, some of the powers of a guardian are set out in the Adult Guardianship Act 1988 (NT). 33 They are the first four powers that are set out in the Guardianship and Administration Act 1986 (Vic) Duties and responsibilities of guardians When an adult person accepts an appointment a guardian they take on a set of duties and responsibilities that are either found in the legislation of the State or Territory they are appointed in or are likely to be held to be applied to them as a matter of common law. These duties and responsibilities are set out below Guardians must apply the legislative principles 25 Guardianship and Management of Property Act 1991 (ACT) s 7(2). 26 Guardianship and Administration Act 1986 (Vic) s 24(2). 27 Guardianship and Management of Property Act 1991 (ACT) s 7(3)(f). 28 Ibid. s 7B. 29 See 7. 4 and following. 30 Public Advocate Act 2005 (ACT) s 12. See also, McGregor and Pearce v The Hon John Gallop and the Attorney-General of the ACT [2002] ACTSC 45 [46]-[50]. 31 Adult Guardianship Act 1988 (NT) s 17(1). 32 Ibid. s 18(1). 33 Ibid. s 18(2). 34 Guardianship and Administration Act 1986 (Vic) s 24(2).

7 7 Guardians must apply the general principles set out in the legislation under which they are appointed, including any relevant more particular principles. 35 For example, in Queensland, if given powers in relation to health matters, they must apply the health care principle Guardians must act honestly and with reasonable diligence Guardians must exercise their functions or powers honestly and with reasonable diligence to protect the interests of the person under their guardianship. This is stated in terms in the Queensland Act, but applies to guardians in all States and Territories Guardians must act in the best interests of the person under their guardianship This central aspect of a guardian s duty or responsibility is stated best in the Western Australian Act, following on from the Victorian Act, but it applies to guardians wherever appointed. Guardians are required, subject to any direction given to them by the body appointing them, to act according to their opinion of the best interests of the person under their guardianship. While their obligations as guardians may extend beyond this in particular cases, guardians act in the best interests of the person under their guardianship if they act as far as possible: 1. as an advocate for the person under their guardianship, 2. in such a way as to encourage that person to live in the general community and participate as much as possible in the life of the community, 3. in such a way as to encourage and assist that person to become capable of caring for themselves and of making reasonable judgments in respect of matters relating to their person, 4. in such a way as to protect that person from abuse, exploitation or neglect, 5. in consultation with that person, taking into account, as far as possible, their wishes, as expressed, in whatever manner, or as gathered from their previous actions, 6. in the manner that is least restrictive of the rights, while consistent with the proper protection, of that person, 7. in such a way as to maintain any supportive relationships that that person has, and 35 Guardianship and Administration Act 2000 (Qld) s 34(1). See also Guardianship Act 1987 (NSW) s 4; Guardianship and Administration Act 1986 (Vic) s 4(2); Guardianship and Administration Act 1993 (SA) s 5; Guardianship and Administration Act 1995 (Tas) s 6; Guardianship and Management of Property Act 1991(ACT) s 5 and Adult Guardianship Act 1988 (NT) s 4(2). 36 Ibid. s 34(2). See also, for example, Guardianship Act 1987 (NSW) s Guardianship and Administration Act 2000 (Qld) s 35.

8 8 8. in such a way as to maintain that person s familiar cultural, linguistic and religious environment. 38 The Victorian, Tasmanian and Northern Territory Acts set out the best interests responsibilities of guardians in the same way. They refer to the first five actions set out above and state that a guardian must act (at all times in Tasmania) in the best interests of the person under guardianship. 39 The New South Wales Act imposes a clear obligation on guardians to give paramount consideration to the welfare and interests of those persons under their guardianship. 40 While the advocacy role of a guardian is not stated in terms as being part of a guardian s duties in the other States and the Australian Capital Territory as it is in Victoria, Western Australia, Tasmania and the Northern Territory, it is understood as an obligation implied into every function or power given to a guardian that the guardian may advocate as appropriate for the person under guardianship in relation to that function or power. The Guardianship Board of Western Australia and it successor, WASAT, both recognise that the role of a guardian includes not only the making of decisions but also acting to assert and protect the rights and interests of those under guardianship against third parties and making representations on their behalf and that this is consistent with the obligation of guardians to act in the best interests of those under their guardianship A guardian s obligations and the views of the person under guardianship This question is discussed in relation to tribunals in Chapter In New South Wales guardians are under a duty to take the views of the person under guardianship into consideration, but they are not bound by them. 42 The guardian must give paramount consideration to the best interests of the person under guardianship. 43 In Victoria, Western Australia, Tasmania and the Northern Territory this obligation is an element of acting in the best interests of the person under guardianship. The person under guardianship must be consulted and their wishes gathered either from current expression or from previous actions. 44 Those wishes are to be taken into account, as far as possible. 38 Guardianship and Administration Act 1990 (WA) s Guardianship and Administration Act 1986 (Vic) s 28; Guardianship and Administration Act 1995 (Tas) s 27 and Adult Guardianship Act 1988 (NT) s Guardianship Act 1987 (NSW) s 4(a). 41 DON [2005] WASAT 193 [37] and [38] and Review of Guardianship Order for LGW (Unreported, Guardianship and Administration Board, 7 May 1004). 42 Guardianship Act 1987 (NSW) s 4(d). 43 Ibid. s 4(a). 44 Guardianship and Administration Act 1990 (WA) s 52(2)(e).

9 9 However, there are extra provisions in Victoria, Tasmania and the Northern Territory which will be returned to shortly. The effect of the New South Wales and Western Australian provisions is that guardians are substitute decision-makers for the people under their guardianship. Their role is not to make substituted judgments but to consider or take into account the views of the person under their guardianship and, having done so, to make decisions in the best interests of those persons, but without being bound by their views. In Victoria, Tasmania, the Northern Territory the obligations of guardians when carrying out their powers and duties come from two sources. The first being a general principle applying when any function, power, authority, discretion, jurisdiction and duty conferred or imposed by the relevant Act is being exercised or performed so that: 1. the means which is the least restrictive of the person with a disability's freedom of decision and action as is possible in the circumstances is adopted, 2. the best interests of that person are promoted, and 3. the wishes of that person are, wherever possible, given effect to. 45 In 1989 Hart J sitting in the Victorian Administrative Appeals Tribunal held that the requirement to promote the best interests of the person with the disability prevailed over the other two requirements. 46 The second is a specific direction to guardians requiring them to act in the best interests of the person under their guardianship. 47 However, they are told that they act in the best interests of the person under their guardianship if they act, wherever possible and among other things, in consultation with that person taking into account, as far as possible, the wishes of that person. 48 Despite the different wording in the relevant legislation, and the internal conflict between the provisions within them, the effect of the Victorian, Tasmanian, the Northern Territory provisions is the same as those in New South Wales and Western Australia, namely that guardians are substitute decision-makers for those under their guardianship. Their role is not to make substituted judgments where to do so would be to act contrary to the best 45 Guardianship and Administration Act 1986 (Vic) s 4(2); Guardianship and Administration Act 1995 (Tas) s 6 and Adult Guardianship Act 1988 (NT) s Re NB Mc & Guardianship Board (1989) 3 VAR 87, Guardianship and Administration Act 1986 (Vic) s 28(1); Guardianship and Administration Act 1995 (Tas) s 27(1) and Adult Guardianship Act 1988 (NT) s 20(1). 48 Guardianship and Administration Act 1986 (Vic) s 28(2)(e); Guardianship and Administration Act 1995 (Tas) s 27(2)(a) and Adult Guardianship Act 1988 (NT) s 20(2)(e).

10 10 interests of those under their guardianship, but to consult with and take into account the views of the person under their guardianship and, having done so, to make decisions in the best interests of those persons without being bound by their views. The relevant legislation in Victoria, Tasmania, the Northern Territory contains a specific section setting out how guardians are to exercise their authority. That section states that they must act in the bests interests of those under their guardianship and advises them that they do so, among other things, by consulting with that person and, as far as possible, taking into account their wishes. 49 Because it applies specifically to guardians, it must prevail, in relation to them, as a matter of statutory interpretation, over the general provision which requires that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by the relevant Act is to be exercised or performed so that the wishes of the person under guardianship are, wherever possible, given effect to. This is particularly so because the same general provision also requires guardians to exercise their powers or perform their duties so that the best interests of the person under their guardianship are promoted. 50 Those two obligations are sometimes in conflict; however they are resolved in the section which sets out how guardians are to exercise the authority given them by the order appointing them. In this regard it should be noted that each year in Australia, a number of people with decision-making disabilities have guardianship or administration orders made in relation to them as the evidence shows they need such orders in part at least because they lack insight into the problems confronting them and demonstrate this by expressing views which, if given effect to, would be seriously detrimental to their own interests. For example, people with dementia often deny they have problems managing at home. They may forget that they have had falls and/or deny they have medical problems or need medication. Often they ask to be left alone. To heed these wishes would be to expose them to risk and neglect which would be detrimental to their own interests. Furthermore, the long established common law policy behind the protective jurisdiction of the Australian Supreme Courts is that of protecting incapable adults and promoting their best interests because of their inability to do those things on their own behalf, despite their ability to express opinions. For all these reasons it is suggested that the relevant legislation in Victoria, Tasmania, the Northern Territory is not intended to be read as importing the requirement of substituted judgment to prevail over a guardian s obligation to act in the best 49 Guardianship and Administration Act 1986 (Vic) s 28(1); Guardianship and Administration Act 1995 (Tas) s 27(1) and Adult Guardianship Act 1988 (NT) s 20(1). 50 Pearce, DC and Geddes RS, Statutory Interpretation in Australia, LexisNexis Butterworths, 6 th ed 2006, [4.32].

11 11 interests of the person under their guardianship, disregarding their views when necessary. Guardians in Queensland are in a similar, but not identical, situation. They must recognise and take into account the right of the person under guardianship to participate, to the greatest extent practicable, in decisions affecting their life, including the development of policies, programs and services for them. Guardians must also take into account the importance of preserving, to the greatest extent practicable, the right of those under their guardianship to make their own decisions. Consequently, they must give those under their guardianship any necessary support and access to information, to enable them to participate in decisions affecting their lives and, to the greatest extent practicable, seek and take into account the views and wishes of those under their guardianship. Also, when performing a function or exercising a power a guardian must do so in the way that is least restrictive of the rights of the person under their guardianship. Furthermore, Guardianship and Administration Act 2000 (Qld) provides that guardians must use the principle of substituted judgment, but in a limited way only. If it is reasonably practicable to work out what the views and wishes of the person under guardianship would be from their previous actions, or from their views and wishes expressed orally, in writing or in another way, including by conduct, then a guardian must take into account what they consider would be those views and wishes. Nevertheless, guardians must perform their functions or exercise their powers in a way that is consistent with the proper care and protection of those under their guardianship. 51 This means that substituted judgment is not to trump the requirement that guardians, when performing their functions or exercising their powers under the orders appointing them, must do so in a way that is consistent with the proper care and protection of those under their guardianship. If the position were otherwise, it would be pointless appointing guardians in Queensland for adults with proven impaired capacity who were nevertheless articulate and stating that they wished to continue with activities that were inconsistent with their the proper care and protection. In the Australian Capital Territory the wishes of the person under guardianship, as far as they can be worked out, must be given effect to, unless making a particular decision in accordance with those wishes is likely to significantly adversely affect the interests of the person under guardianship. Even if giving effect to that person s wishes is likely to significantly adversely affect their person s interests, the guardian must, nevertheless, give effect to those wishes as far as possible without significantly adversely affecting the interests of the person under guardianship. It is only when those wishes cannot be given effect 51 Guardianship and Administration Act 2000 (Qld) Schedule 1, item 7.

12 12 to at all that the guardian can (and must) act, in a way unencumbered by those wishes, to promote the interests of the person under their guardianship. 52 Through these provisions, the Guardianship and Management of Property Act 1991 (ACT) puts substituted judgment before best interests placing guardians in the Australian Capital Territory in the difficult position of either standing by while people under their guardianship with impaired decision-making capacity suffer unnecessary detriments to their interests or ignore the clear words and intention of the Act and step in to prevent this happening. In South Australia when making decisions about the person under guardianship, guardians must, as the paramount consideration, give consideration to what, in the guardian s opinion the wishes of the person under guardianship would be in the matter if they were not mentally incapacitated. Guardians are required to do this only to the extent that there is reasonably ascertainable evidence on which they can base such an opinion. 53 However, they must seek and consider the present wishes of the person, unless it is not possible or reasonably practicable to do so. 54 The South Australian requirement divides into two parts. Under the first part it requires guardians to gather evidence, if they can, of the views of the person under their guardianship. Then, from that evidence, consider, as the paramount requirement, what the wishes of the person under their guardianship would have been in relation to the matter to be decided if they had not been mentally incapacitated. What appears to be required is the ascertainment of the preincapacity views of the person under guardianship. Where the pre-incapacity views of the person under their guardianship are not discoverable, this requires an element of guesswork on the part of the guardian as to those views, but does not appear to require the guardians to make substituted decisions to give effect to any presumed views. The second part requires the guardian to obtain the current wishes of the person under their guardianship about the matter to be decided, unless it is neither possible nor reasonably practicable to do so, and to give consideration to, but not be bound by those wishes Guardians must act as required by terms of the order appointing them Guardianship orders may contain functions or powers stated in standard terms or in terms drafted to meet the particular needs of the person under guardianship. They may contain conditions or be subject to directions. Consequently, when exercising their functions or powers, guardians must exercise them as required by the terms of the order appointing them Guardianship and Management of Property Act 1991 (ACT) s 4(2). 53 Guardianship and Administration Act 1993 (SA) s 5(a). 54 Ibid. s 5(b). 55 Guardianship and Administration Act 2000 (Qld) s 36.

13 The legal effect of actions taken and decisions made by guardians Any action taken, decision made, consent given, document executed or thing done by a guardian in the performance of the functions vested in them by the order appointing them or implied from or ancillary to that order has effect as if it had been taken, made, given, executed or done by the person under guardianship and that person was of full legal capacity. This point is specifically made in the relevant legislation in New South Wales, Tasmania, Victoria, Western Australia and the Northern Territory. 56 However, it is stated a little differently in the Australian Capital Territory where any act or omission of a guardian under the Guardianship and Management of Property Act 1991 (ACT) has effect as if it were an act or omission of the person under guardianship and that person was of full legal capacity. 57 The approach in the Guardianship and Administration Act 2000 (Qld) is different. When it is necessary or convenient to exercise a power, a guardian may sign a document as guardian and the document is as effective as it would have been if it had been signed by the person under guardianship with capacity to sign the document. Also, the guardian may exercise any of the powers given in the guardianship order in their own name. If a guardian does this, their action is as effective as if it had been done in the name of the person under guardianship. This implies that a guardian, in taking action under the guardianship order appointing them, acts with the same effect as the agent of the person under guardianship with full authority to take the actions they have taken. 58 The Guardianship and Administration Act 1993 (SA) does not deal with the question, but a guardian appointed by the South Australian Guardianship Board stands in the shoes of the person they are appointed to make decisions for and their decisions are, in effect, decisions of the person under their guardianship. The legal and practical effects of the decisions and actions of guardians on behalf of the person under their guardianship help explain why guardians are subject to a range of obligations and responsibilities placed on them Restrictions on the functions or powers of a guardian While tribunals and courts in Australia have wide powers to make guardianship orders, it does not follow that they have the power to appoint guardians as substitute decision-makers for every area of personal decision-making. Some matters are so personal, such as the decision to marry, or are such a personal right that they may be exercised only by the person themselves and are lost if 56 Guardianship Act 1987 (NSW) s 21C Guardianship and Administration Act 1995 (Tas) ss 25(3) and 26(2); Guardianship and Administration Act 1986 (Vic) s24(4); Guardianship and Administration Act 1990 (WA) s 50 and Adult Guardianship Act 1988 (NT) ss 17(4) and 18(3). 57 Guardianship and Management of Property Act 1991 (ACT) s Guardianship and Administration Act 2000 (Qld) s 45.

14 14 the person loses capacity to exercise it, for example the right to vote in an election. This issue has been recognised in Western Australia and the Australian Capital Territory where there are statutory restrictions that preclude a guardian from doing certain things. In the Australian Capital Territory these are: 1. the power to discipline the person under their guardianship: 2. to vote in an election for the person under their guardianship, 3. to make a will or other testamentary instrument for the person under their guardianship, 4. to consent to the adoption of a child on behalf of the person under their guardianship, 5. to give a consent to a marriage on behalf of the person under their guardianship, 6. to give a consent required for a prescribed medical procedure for the person under their guardianship. 59 In Western Australia guardians of adults are specifically denied the right to chastise or punish the person under their guardianship. The other things they cannot do are expressed in similar terms to those in the Australian Capital Territory Act. 60 There have been decisions by the Supreme Court of New South Wales and VCAT indicating a reluctance to extend the range of the powers and functions of guardians so that may make substitute decisions for those under their guardianship in relation to matters arising in the course of criminal proceedings or related proceedings. Underlying this reluctance is the view that such decisions are for the accused or convicted person alone, regardless of their capacity to understand the issues involved and make a reasonable judgments in relation to them. 61 It is suggested that in the other States and the Territories, guardians cannot do or make substitute decisions about these matters either. As will be seen in Chapters 12 and 15, there are special legislative provisions relating to sterilisation and selected other kinds of medical treatment that either prevent or circumscribe a guardian s capacity to act as a substitute decisionmaker in relation to those treatments No power to discipline person under guardianship Only in New South Wales can guardianship orders be made for those who are still minors namely those who are at least 16 years but not yet 18 years of 59 Guardianship and Management of Property Act 1991 (ACT) s 7B. 60 Guardianship and Administration Act 1990 (WA) s 45(1), (3), (4) and (5). 61 Public Guardian v Guardianship Board (1997) 42 NSWLR 201and PL (Guardianship) [2007] VCAT 2485.

15 15 age. 62 In the other States and Territories the legislation applies to those who are 18 years and above. It is not appropriate for a guardian to discipline another adult. Guardianship is not that kind of relationship. Also, a guardian who disciplined a person who was under their guardianship would be acting contrary to the principles set out in the guardianship legislation throughout Australia and contrary to the principles stated in or the policy behind all the recent legislation in Australia relating to people with disabilities. The view of the courts has long been that the jurisdiction exists for the benefit of the incapable person. 63 To accept that a guardian could be empowered to punish or to authorise others to punish the person under their guardianship, would be contrary to the history of the jurisdiction No power to vote in an election for the person under their guardianship The right to vote is a right given expressly by legislation, according to the terms of that legislation. Subject to arguments about constitutionality in the Commonwealth at least, the right can be removed or denied by that legislation. The Commonwealth Electoral Act 1918 (Cth) provides that a person who, by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting is not entitled to have their name placed on or retained on any roll or to vote at any Senate election or House of Representatives election. 64 The right is personal and cannot be transferred to another person No power to make a will or other testamentary instrument for the person under their guardianship As noted in Chapter 4, a person must have will-making capacity before they can make a will. They must meet the test in Banks v Goodfellow. 65 Also as noted in Chapter 4, in each State and Territory the Supreme Court may grant leave to any person to apply to the Court for it to make, alter or revoke a will, in the specific terms approved by the Court. 66 While statutory wills to be made, they may be made only by the processes administered by Supreme Courts. The power to make them is not given to guardians. Except as varied by the legislation allowing for statutory wills, the right to make a will is personal and cannot be transferred to another person No power to consent to the adoption of a child on behalf of the person under their guardianship Again, adoption is a matter covered by State and Territory legislation, and principles relating to the best interests of the child being considered for 62 Guardianship Act 1987 (NSW) s 15(1). 63 Ex parte Lyttleton (1801) 31 ER 911; In re B (an alleged lunatic) [1891] 3 Ch 274; M v M [1981] 2 NSWLR 334, 336; RH V CAH [1984] 1 NSWLR 694, Commonwealth Electoral Act 1918 (Cth) s 93(8). See also, for example, Parliamentary Electorates and Elections Act 1912 (NSW) s (1870) LR 5 QB See

16 16 adoption. Adopting a child imposes great responsibilities and obligations on the adopting parent. Because of these considerations, adoption is not something that a substitute decision-maker can consent to on behalf of another person No power to consent to a marriage on behalf of the person under their guardianship If a person lacks the capacity to consent to marry, that is the end of the matter, no court, tribunal or substitute decision-maker can consent, on their behalf, to a person lacks the capacity marrying The functions/powers of guardians Advocacy As already noted, in Tasmania, Victoria, Western Australia and the Northern Territory, advocating for the person under guardianship is set out in the relevant legislation as one of the ways of acting in the best interests of the person under guardianship. 68 In any event, guardians are expected advocate in the best interests of those under their guardianship in relation to the matters they are given the function or power to make decisions about. Nevertheless, it is sometimes necessary to appoint a guardian with a specific advocacy function Accommodation In Queensland, Tasmania, Victoria, Western Australia, the Australian Capital Territory and the Northern Territory, plenary guardians or limited guardians given the authority by the relevant tribunal or court may decide where the person under their guardianship is to live. 70 In New South Wales guardians have this function and in South Australia guardians have this power because it is a function or power that a guardian has at law or equity. 71 The power to make this decision is very frequently given to guardians. 72 The view taken in New South Wales at least is that the giving of this function to a guardian authorises them to decide where the person under guardianship is to live and for either them or others acting under their direction to take the person to that place of residence and to keep them safely there. This form of the accommodation function allows guardians, family-member carers or paid service providers to use normal practices to keep the premises appropriately 67 Sheffield City Council v E [2004] EWHC 2808 (Fam) [100]. 68 See See also, Guardianship and Administration Act 1995 (Tas) s 27(2)(b); Guardianship and Administration Act 1986 (Vic) s 28(2)(a); Guardianship and Administration Act 1990 (WA) s 51(2)(a) and Adult Guardianship Act 1988 (NT) s 20(2)(a). 69 See for example, Matter No. 97/0696 (unreported, Guardianship Board, 21 March 1997). 70 Guardianship and Administration Act 2000 (Qld) Schedule 2 s 2(a); Guardianship and Administration Act 1995 (Tas) s 25(2)(a); Guardianship and Administration Act 1986 (Vic) s 24(2)(a); Guardianship and Administration Act 1990 (WA) s 45(2)(a); Guardianship and Management of Property Act 1991 (ACT) s 7(3)(a) and Adult Guardianship Act 1988 (NT) s 17(2)(a). 71 For NSW see, Guardianship Act 1987 (NSW) s 21(1)(b). See also s 21(2A). For South Australia see, Guardianship and Administration Act 1993 (SA) s For an example see, MJ and MWT [2006] WASAT 59.

17 17 locked and to provide safe boundaries to the property. This includes introducing complex gate opening devices aimed at preventing children, people with dementia or people with other forms of cognitive impairment either entering unsafe parts of the property or leaving the property unsupervised when they lack the capacity to look after their own safety. The exercise of this form of the function also allows nursing and other staff in hospitals, aged care facilities and similar places where accommodation, day care and associated support services when they are providing services to people with decisionmaking disabilities to use normal nursing techniques of diversion and engagement of the person to draw them away from situations in which they may inappropriately or unsafely leave the premises. Should such people leave the premises, their carers can guide, direct or help them back to the premises where they are being cared for. They may use methods which may involve touching, but not the use force. Common sense, acting in the best interests of the person to protect them from harm and to preserve their dignity is required in these circumstances. If a person for whom a guardian is being or has been appointed cannot be kept at a place of accommodation without the guardian and those responsible for the person s care and safety having greater authority to control the person, the guardian can be given a stronger form of accommodation function or power in the order appointing them and giving them their functions and powers. However, this order must be explicit as to the extent of the function or power it gives. Also, the function or power may be given only if it promotes the best interests of the person under guardianship. The form of order used in New South Wales empowers the guardian to authorise others to take the person under guardianship to a place of accommodation, to keep them there and to bring them back to that place of residence should they leave it. This is authorised by the Guardianship Act 1987 (NSW) which provides that the guardian, a person authorised by the guardian or particular persons or a class of persons specified in the order may be empowered to take such measures or action as are specified in the order so as to ensure that the person under guardianship complies with the decision of the guardian. 73 Any of them who takes any measure or action specified in the order in the reasonable belief that they are empowered by the order to do so and the measure or action is in the best interest of the person under guardianship and it is necessary or desirable in the circumstances to take that measure or action, the person doing so is protected from legal action. 74 In a 2003 case, the then Queensland Guardianship and Administration Tribunal took the same approach in a case involving an adult with a moderate level of intellectual disability who had exhibited aggressive and destructive behaviours over a period of time despite the trialling of many strategies to minimise those 73 Guardianship Act 1987 (NSW) s 21A(1). 74 Ibid. s 21A(2).

18 18 behaviours. 75 The question for the Tribunal was whether it could make a guardianship order empowering the guardian to determine where the person under guardianship may live, to keep them at that place of residence and bring them back to that place of residence should they leave it. And, in addition, to require them to undergo examination and treatment by a doctor, including a psychiatrist, using the minimum force necessary and reasonable to carry out the treatment. The Queensland Tribunal noted that it could appoint a guardian after finding that the incapable person did not have the capacity to make decisions for themselves. The Tribunal also noted that guardians can make decisions, in the best interests of those under guardianship even if that was contrary to the stated views of those under their guardianship. The Tribunal also stated that the guardianship regime is not simply a substitute decision making regime but a regime which must operate in the best interests of the adult and, as such, allows guardians to make decisions which may restrain or contain the person under guardianship if that is in their best interests. 76 Consequently, the person under guardianship could be held, diagnosed and treated against their stated views as a result of a decision of their guardian in the exercise of a function or power given to the guardian in a guardianship order. Where the person under guardianship has behavioural problems, arising from their whole of life or acquired decision-making disability, this form of the accommodation function may need to be supported by a behaviour intervention and support plan. This matter is taken up later in this chapter. 77 There are similar provisions in the Tasmanian and Victorian legislation. 78 It is respectfully suggested that those provisions can be used for the same purpose in those States as it is in New South Wales. In South Australia the Guardianship Board has been given a specific statutory power to make orders of this kind. 79 The guardian or another person may apply and the application may be heard at the same time as the application for the appointment of a guardian. The Board may make an order directing the person under guardianship to live with a specified person or in a specified place or with such person or in such place as the guardian from time to time thinks fit. The Board may authorise the detention of the person in the place where they are to reside. 75 Re JD [2003] QGAAT Ibid. [37]. 77 See Guardianship and Administration Act 1995 (Tas) s 28; Guardianship and Administration Act 1986 (Vic) s Guardianship and Administration Act 1993 (SA) s 32.

19 19 It is the Board that authorises the detention. It may also, by order, direct where the person under guardianship may reside and with whom, but it may leave either or both those decisions to the guardian While the order is in force, the Board may also authorise the person s care providers to use such force as may be reasonably necessary for the purpose of ensuring the proper medical or dental treatment, day-to-day care and wellbeing of the person. The Board cannot make any of these orders unless it is satisfied that the health or safety of the person under guardianship or the safety of others would be seriously at risk if the order was not made. However, the provision cannot be used to allow or authorise the detention of a person under guardianship in a correctional institution or any other place in which persons charged with or convicted of offences may be detained or in any part of an approved treatment centre under the Mental Health Act 1993 (SA) that is set aside for the treatment of those with a mental illness. The guardian or a member of the police force may enter any premises and take the person under guardianship to the place in which they are to be placed or detained, but may use only such force as is reasonably necessary for the purpose. Also, the person in charge of the premises in which the person under guardianship is being detained may take such action as is reasonably necessary to prevent the person under guardianship from leaving the premises or for bringing them back to the premises should they leave without lawful authority or excuse. There are legal protections for those acting in good faith under this provision. The District Court of South Australia has held that a guardian cannot use the authority given them under this provision to direct that the person under their guardianship be taken to a particular place of accommodation and held there over night in emergency situations. The guardian may direct that the person be detained in the place in which they will reside, but may not direct that they be taken occasionally to a particular place of residence as it could not be said that that they were residing there. 80 Whether a guardian could direct that a person under their guardianship be detained temporarily in a particular place under this provision pending finding a permanent placement for them is an open question. It is a fact situation that is significantly different from that ruled upon by the District Court. To help make these placement and detention provisions effective, the South Australian Act allows a member of the police force who has reasonable cause to believe that a person who is being detained in any place under such an order 80 Carter No. DCAAT [1997] SADC For other cases about s 32 of the Guardianship and Administration Act 1993 (SA) see, Robinson v Guardianship Board [1999] SADC 12 and S, P v Guardianship Board [2006] SADC 38.

20 20 is unlawfully at large, without warrant, to enter any place in which the police officer believes on reasonable grounds that the person under guardianship may be and apprehend them, using only such force as is reasonably necessary for the purpose, and return them to the place in which they are being detained. 81 There is a specific offence in South Australia of, without lawful authority or excuse, removing from the place in which they are being detained a person who is being detained there pursuant to powers conferred under the Guardianship and Administration Act 1993 (SA). Aiding or abetting the person under guardianship to leave that place unlawfully is an offence also Health Care Health care and medical and dental consent are different but related functions. The health care function or power authorises the guardian to take the initiative in deciding on and seeking out appropriate health care for the person under their guardianship. It gives the guardian a proactive role. As the New South Wales Guardianship Tribunal pointed out in a 2007 case: The health care function allows a guardian to make decisions in relation to the choice of appropriate health care for a person under guardianship, the provision of that health care and for general health care planning. A guardian, exercising a health care function could, for example, determine that the person under guardianship should consult a specialist medical practitioner or a general practitioner. Differing treatment modalities can be chosen. A guardian might decide between surgical or non surgical care, traditional/western medicine or alternative/complementary approaches, therapeutic or curative treatment or palliative care. 83 The Tribunal went on to note that: Health care planning is an important part of a guardian s role under the health care function. A health care plan can map out an approach to treatment and may contain general directions about treatment options. Health care planning affords a significant opportunity for a guardian to advocate on behalf of a person with a disability in relation to their health care needs. It can also be of particular importance for people in end of life situations, when a decision is made about adopting a therapeutic approach or a palliative approach to health care. Health care planning which addresses end of life issues is often referred to as advance care planning Guardianship and Administration Act 1993 (SA), s 32(6). 82 Ibid. s 32(7). 83 BAH [2007] NSWGT 1 [108]. 84 Ibid. [109].

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