The Limits and the Social Legacy of Guardianship in Australia
| DOI | 10.1177/0067205X8901800403 |
| Date | 01 December 1989 |
| Published date | 01 December 1989 |
| Subject Matter | Article |
1989]
Limits and Social Legacy
of
Guardianship
in
Australia
THE
LIMITS
AND
THE
SOCIAL LEGACY
OF
GUARDIANSHIP
IN AUSTRALIA
TERRY
CARNEY*
231
INTRODUCTION
A
The
policy background
Guardianship laws either for intellectually disadvantaged people alone,
or
for anyone with diminished functional capacity (such
as
victims
of
brain
trauma), are now popular in Australia (other than in Western Australia and
the Australian Capital Territory)l and New Zealand.2These laws are based
on North American experience, particularly that
of
the Dependent Adults
Act
1976
(Alberta).3 The common thread
is
that it permits aguardian
to
be appointed to manage the property
or
the personal affairs
of
the
disadvantaged person,
or
to make one
or
more of the multitude
of
decisions
lying within these two broad areas
of
human living.
Contemporary legislation
is
notable for three things. First, partial orders
are permitted (in place
of
only plenary orders4
).
Indeed they are positively
encouraged where any intervention at all
is
called for (the normalisation
principle). Secondly, personal guardianships have been revived (having existed
all along under cumbersome equity jurisdictions
of
-
or
associated with
-superior courts5
).
Thirdly, administrative boards, with multi-disciplinary
*LL B(Hons), Dip Crim (Melb),
Ph
D(Mon), Associate Professor
of
Law, Monash University.
Mr KAkers BA(Mon) has worked
as
Senior Researcher
on
this project. The research
reported in this paper has been supported by funds from the Australian Research Council.
IThe dominant reform model
is
the Guardianship and Administration Board Act 1986 (Vic)
[cited subsequently
as
Vic
Act]. The other legislation to be dealt with
in
this article
is:
Intellectually Handicapped Citizens Act 1985 (Qld) [cited subsequently as Qld Act]; Protected
Estates Act 1983 (NSW); [cited subsequently
as
NSW (PE) Act 1983]; Disability Services
and Guardianship Act 1987 (NSW) [cited subsequently
as
NSW (DS) Act 1987]; Mental
Health Act 1963 (Tas) [cited subsequently
as
Tas Act]; Mental Health Act 1977 (SA) [cited
subsequently
as
SA Act]; Mental Health Act 1962 (WA) [cited subsequently
as
WA Act];
Adult Guardianship Act 1988 (NT) [cited subsequently
as
NT Act]; Dependent Adults Act
1976 (Alberta) [cited subsequently
as
Alberta Act]; and Protection
of
Personal and Property
Rights Act 1988 (NZ) [cited subsequently
as
NZ Act]. In relation to Western Australia, it
is
also necessary to refer to the Supreme Court Act 1935 (WA), for the Mental Health Act
1962 (W
A)
provides only for property management, leaving personal management to the
power
of
the Supreme Court to appoint acommittee. In the ACT the Lunacy Act 1898
(NSW) remains the main source of redress.
2Protection
of
Personal and Property Rights Act 1988 (NZ). The New Zealand legislation
is
analysed in WAtkin, "The Courts, Family Control and Disability -Aspects
of
New
Zealand's Protection
of
Personal and Property Rights Act 1988"(1988)
18
Vic
Univ Wellington
LRev 345-365.
1TCarney and PSinger, Ethical
and
Legal Issues
in
Guardianship Options
for
Intellectually
Disadvantaged People (1986, Canberra AGPS). Limited guardianship
is
provided in 34
of
the states
of
the USA: BGalt,
"A
Critique and Revision
of
the Utah Guardianship Statute
for Incapacitated Persons" [1986] Utah LRev
629,630
nn 9,
12.
1Alberta removed the distinction (and plenary orders) in 1985 (Dependant Adults Amendment
Act 1985 esp
ss
2,
ll(1»,
leaving plenary power to be built up by the court enumerating
all
of
the listed possible powers (against abackdrop that only necessary powers be granted:
s10(1)
(2».
TCarney, "Civil and Social Guardianship for Intellectually Handicapped People" (1982) 8
Monash LRev 199,205-207.
232
Federal Law Review [VOLUME
18
composition, frequently (but not
inevitably!»
have been charged with the task :
of
applying the new laws.7In Australia, Western Australia and the Australian
Capital Territory are exceptions (providing only for plenary property
management, and personal guardianships only under cumbersome inherent
powers
of
the Supreme Court to appoint acommittee
of
the person), while :
in Tasmaniapersonalguardianships are but an adjunct
of
medical management
under the Mental Health Act
1963
(Tas).
The object
of
the new legislation
is
facilitatory (to enable people to (re)gain
greater independence and capacity to live in the community) and benevolent
(it aims to enhance rather than to restrict individual freedoms, and to promote
the welfare of disadvantaged people). Once appointed, therefore, guardians I
commonly have two responsibilities. There
is
first the 'autonomy-enhancing' I
(but approximate and proxy) task
of
exercising rights on behalf
of
the
represented person where this proves necessary.8 The second has apaternal
flavour: it
is
to protect the interests
of
the represented person.9That dual
,I
responsibility conceals atension between philosophically incompatible values:
the autonomy value
is
uncomfortably counterpoised against
that
of
I
paternalism. The design of the legislation naturally seeks to place these
I,
countervailing positions into balance.
One way in which that balance may be sought to be struck
is
through I
the composition of the administering court or board, the specification
of
I
eligibility criteria to be satisfied before applications may be entertained
or
granted,1O
and the selection of procedural rules which apply to the reaching i
of adecision. Under what may be termed a'legal process' model, autonomy I
is
given greatest weight. This
is
achieved by such means
as
tight and narrowly I
defined statements
of
the population eligible for an order, and through I
insistence on compliance with standards
of
proof, and hearing procedures, I
6Alberta, New Zealand, NSW and the Northern Territory, for example, retain the judicialI
mode in whole,
or
part: Alberta Act sl(c) [the Surrogate Court of Alberta]; NZ Act
Sl
2[the Family Courts Division of the District Court]; NSW (DS) Act
1987
ss
8,14,31;
NSWI
(PE) Act
1983
s
68
[the Protective Division of the Supreme Court exercises certain parallelI
and overriding powers to those of the Board]; NT Act
ss
9(
1),
11
(2)(b)[the Local CourtI
on advice from aGuardianship Panel].
7
Eg
Vic
Act s
19
[Guardianship and Administration Board]; SA Act s
20
[Guardianshipi
Board]; Qld Act s
16(
a)(i) [Intellectually Handicapped Citizens Council
of
Queensland].
TCarney and PSinger, supra n
3,
48-49.
The Alberta legislation, for example, enables the guardian to be granted control over "norma'
day to day decisions
...
including the diet and dress
...
":
Alberta Act s10(2)(h).
10
Acommon pre-requisite
is
the three-fold 'legal process' test
of:
(1)
that the person fallsI
into adefined category such
as
having a'disability' (Vic Act s
22(
1)(
a); NSW (DS)
Actl
1987
ss
3(2),
7;
Tas Act s22(l)(a); SA Act s26(1»; NT Act s15(l)(a»;
(2)
is
unable
by'
reason
of
their disability to make reasonable judgements about aspects of their person or
circumstances (Vic Act s22(1)(b); NSW (DS) Act
1987
s 7 [defines "person in need"
tc
be inability to manage]); and
(3)
is
in need
of
aguardian (Vic Act s22(l)(c); NT Act s
15(
I)(b
».
Another kind of pre-requisite
is
illustrated by the more welfare oriented
Albert~
test
of:
(I)
that the person "would substantially benefit" from an order (Alberta Act s4(l)(a)
[introduced in
1985,
replacing "need" in the
1976
Act]);
(2)
that an order
is
in the
"bes1
interests" ofthe person (Alberta Act s4(1)(b), cf Tas Act s22(1)(b) ["necessary in the interests
of
the patient'1); and NZ Act s12(2)(b) [the "only satisfactory
way
to ensure that appropriat
decisions are made'1; and
(3)
is
both repeatedly or continuously "unable to care for", an
unable to "make reasonable judgements in respect of" themselves (Alberta Act s6(1)(b)
cf Qld Act
ss
4[definition
of
"functional competence'1, 16(2)(b) ["competent in law'1; S
Act s
26(
I); NZ Act s
12(2)(
a) [lackscapacityto understand or to communicate an understandin
of the nature and consequences
of
matters related to personal care and welfare]).
1989]
Limits
and
Social Legacy
of
Guardianship
in
Australia
233
which replicate those
of
acourt,
or
which aim to reach the same results
by less formal and less threatening hearing styles. On the other hand a'welfare'
or
a'developmental' model stresses the paternal value
of
protecting vulnerable
people from risk
or
exploitation. The first seeks to achieve this by
approximating the service access and delivery standards
of
ageneral welfare
service administered by aprofessional social work agency. Thus eligibility
criteria are more diffuse (as would be the case with say identification
of
aneed for counselling services) and procedures parallel those
of
the helping
professions (medicine and social work), with relaxed and generous provision
ofguardianship services, free ofthe excesses
of
legal monitoring
or
gatekeeping.
(The development model
is
similar except that, by drawing parallels with
the flexible powers of aparent over achild, it concentrates on the
post-
service delivery phase.)ll
The 'reform' legislation in the mainland States
of
Australia (apart from
Western Australia and the Australian Capital Territory) broadly subscribes
to the legal model, at least at aformal level. Tasmania breaks ranks to
the extent that their
legislat~on
is
much more an adjunct to the medical
management
of
mentally
ill
patients otherwise requiring compulsory detention.
Where Victoria (and otherjurisdictions in that vein) break new ground within
the mainstreamStates
is
inendeavouringto promote an accessible and informal
atmosphere at Board hearings and in monitoring orders to review their
suitability, both in meeting individual needs and in maintaining abalance
between the values
of
autonomy and paternalism. The literature suggests
that this
is
not easily achieved. At the intake level the decision-maker (in
Victoria the Board) may misjudge the level
of
competence
of
individuals.
12
This
is
accentuated in a'welfare model', such
as
that in Tasmania, where
admission
is
essentially amatter for medical certification to abody whose
prime task
is
to ratify that assessment.
13
Alack
of
someone to speak for
the disadvantaged person,
or
unduly abbreviated hearings, may lead to the
making
of
overly protective orders.
14
Formal guarantees
of
rights may, in
any event however, be contradicted in practice: thus aUnited States study
found that ajurisdiction lacking any legislative guarantees (the District
of
Columbia) in practice subscribed to the legal model, routinely supplying good
legal advocacy, while the reverse was the case in the state
of
Texas (where
mere lip service was paid to comprehensive legislative guarantees).IsThere
is
also arisk that orders will be made for the wrong reasons, such
as
to
undermine informed consent protections over the provision
of
medical care
l6
II
TCarney and PSinger supra n3,56-69,
113-117.
12
SShah, "Legal and Mental Health System Interactions"(1981) 4Int
Jo
ofLaw and Psychiatry
219,
255.
13
Tas Act
ss
14(3)(4),23(1)
[a
guardianship application "forwarded" to the Board and "accepted"
by it].
14
GMorris, "The Use of Guardianships to Achieve -
Or
to Avoid -the Least Restrictive
Alternative" (1980) 3Int
Jo
of
Law and Psychiatry
97.
IS
RAllen, Legal Rights
of
the Disabled
and
Disadvantaged
(1969
,Washington DC, Social
and Rehabilitation Service, US Department
of
Health Education and Welfare)
4-6;
(published
for the National Citizens Conference on Rehabilitation of the Disabled and Disadvantaged).
16
RGordon and SVerdun-Jones, "The Right to Refuse Treatment: Commonwealth
Developments and Issues" (1983) 6Int
Jo
of
Law and Psychiatry
57,
67.
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