Disability and Guardianship

Contributor: Nick Seddon

Currency of information: January 2009

This Chapter on Disability and Guardianship draws upon material in the Victorian 2005 Law Handbook, published by the Fitzroy Legal Centre.

Disability Overview

Defining Disability

Disability is commonly understood as "the functional consequence of an impairment in the body or human functioning". It may be visible or not. It may be sensory (for example, deafness), neurological (for example, epilepsy), physical (for example, multiple sclerosis), mental or psychiatric or emotional, or intellectual impairment. Disability may be:

(a) inherited through genetic transmission or resulting from a genetic defect or mutation;

(b) congenital, resulting from infections, injury or abnormal development during pregnancy or injury soon after birth;

(c) acquired, as in motor vehicle accident, disease or substance abuse;

(d) of unknown origin; or

(e) caused by ageing, poor health and/or nutrition, environmental and social conditions and individual choices, often extending over many decades.

In the ACT, an estimated 15.2 per cent (Australian Bureau of Statistics, 2003) of our population identify as having a disability. Of these, the majority are able to live independently relying occasionally on family and ordinary community resources.

The Disability Services Act 1991 (ACT) s 4 defines "disability", in respect of a person, to mean:

a disability--

(a) which is attributable to an intellectual, psychiatric, sensory or physical impairment or a combination of those impairments;

(b) which is permanent or likely to be permanent;

(c) which results in--

(i) a substantially reduced capacity of the person for communication, learning or mobility; and

(ii) the need for continuing support services; and

(d) which may or may not be of a chronic episodic nature.

Disability is relevant to the application of the law in various ways that are covered in this chapter or in other chapters, particularly chapter 50 Human Rights and Discrimination and chapter 53 Mental Health Law.

Relevant Legislation

The legislative definition of disability varies according to the objectives of the particular Act from very broad, all-encompassing definitions to very narrow ones focusing on one type of disability. Legislation that relates to disability does so in relation to:

• complaints of discrimination on the basis of disability, for example, Discrimination Act 1991 (ACT); Disability Discrimination Act 1992 (Cth);
• services specifically provided to people with a disability, for example, Disability Services Act 1986 (Cth); Disability Services Act 1991 (ACT); Public Advocate Act 2005 (ACT);
• applications for guardianship and administration orders, for example, Guardianship and Management of Property Act 1991 (ACT);
• care, treatment and protection of persons "at risk" who cannot consent to such care, treatment and protection, whether within or outside the criminal justice system, for example, Mental Health (Treatment and Care) Act 1994 (ACT); Intoxicated People (Treatment and Care) Act 1994 (ACT);
• particular criminal offences/criminal justice system responses to disability, for example, Criminal Code 2002 (ACT) ss 27-29 which deal with criminal responsibility; Crimes Act 1900 (ACT) Part 13 which deals with mental impairment and unfitness to plead; Crimes (Sentencing) Act 2005 (ACT); or
• exemption of particular groups of people with disabilities from specific laws for example Residential Tenancies Act 1997 (ACT) s 4.

Overview of Interaction of the Law and Disability

Discrimination

The Discrimination Act 1991 (ACT) s 5AA defines disability as:

(a) total or partial loss of a bodily function;

(b) total or partial loss of a part of the body;

(c) malfunction of a part of the body;

(d) malformation or disfigurement of a part of the body;

(e) the presence in the body of organisms that cause or are capable of causing disease;

(f) an illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour; or

(g) an intellectual disability or developmental delay.

Section 4 of the Disability Discrimination Act 1992 (Cth) provides a similar but even broader definition. It includes many conditions which are not commonly considered to be disabilities and, as with the Discrimination Act 1991 (ACT), is more concerned about unfair and discriminatory treatment rather than the medical or technical accuracy of a disability. This broad legal definition of disability is intended to provide for the widest possible range of complaints against unlawful discrimination on the basis of anything to do with the working or non-working of a person's body or mind.

For example, a person who has undergone gender re-assignment surgery or who is dependent upon a prohibited or regulated substance may meet the criteria for making a discrimination complaint under s 4 of the Disability Discrimination Act 1992 (Cth).

Protection against discriminatory treatment may also extend to people with a defined relationship with the person who has a legally defined disability, who experience discrimination on the basis of the person's disability.

For information on making complaints about discrimination, see chapter 50 Human Rights and Discrimination.

Commonwealth Government services

CSTDA

Specialist services, including advocacy for people with a wide range of disabilities, are provided for under the Commonwealth, States and Territories Disability Agreement (CSTDA) with reference to the Disability Services Act 1986 (Cth) and the Disability Services Act 1991 (ACT).

The third CSTDA was due to expire on 30 June 2007, however the Australian, State and Territory Governments agreed to an extension to 31 December 2008 to enable negotiations for a new National Disability Agreement. See the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) website www.facs.gov.au/internet/facsinternet.nsf/disabilities/policy-cstda.htm for current copies of these agreements. Under these agreements FaHCSIA does not itself provide any specialist services but funds and monitors some employment and advocacy services. See www.facs.gov.au/internet/facsinternet.nsf/disabilities/services-nav.htm for more information.

DEEWR NDCO Program - Northcott Disability Services

The Department of Education, Employment and Workplace Relations (DEEWR) funds the National Disability Coordination Officer (NDCO) Program, a national network of 31 coordination officers who provide information, coordination and referral services for people with a disability who are interested in, or enrolled in, post-school education and training. The NDCO Program is administered from DEEWR's Victorian State Office. Northcott Disability Services is the service provider for the ACT and SE NSW regions including Eden Monaro, Queanbeyan, Yass, Goulburn and Illawarra regions (see Contacts and Links for full details). Providers for each of the 31 NDCO Service Regions are listed on the DEEWR website at www.deewr.gov.au/Skills/Programs/Support/NDCO.

Commonwealth Rehabilitation Service (CRS)

The CRS assists people with disabilities to retain employment or make substantial gains towards employment or personal independence within their home and community. To be eligible for rehabilitation assistance from the CRS, a person must:

(a) be at least 14 years of age but less than 65 years of age; and

(b) have a disability that:

• is attributable to an intellectual, psychiatric, sensory or physical impairment or a combination of such impairments; and
• results in substantially reduced capacity to obtain or retain unsupported paid employment or to live independently.

A CRS management plan may provide:

(c) suggestions on ways to manage a client's disability;

(d) on-the-job training and support;

(e) counselling;

(f) work experience; and/or

(g) training courses, and retraining if the client is unable to return to their previous job.

A client may appeal against a decision of CRS to the Commonwealth Ombudsman or to the Administrative Appeals Tribunal.

Medical practitioners, hospitals, welfare agencies, employers, people with disabilities or their families can make a referral to the CRS. To obtain an application form, contact the CRS (see Contacts and Links for details).

Programs for students with disabilities and impairments

• The Commonwealth Disability Standards for Education were formulated under the DDA (Cth) and came into effect in August 2005. The Standards clarify the obligations of education and training providers to ensure that students with disabilities are able to access and participate in education without experiencing discrimination. If an education provider fails to comply with the standards a student can pursue a discrimination complaint against them under the DDA (see Equal opportunity commissions and Chapter 50 Human Rights and Discrimination). Copies of the standards and explanatory notes can be found at www.deewr.gov.au/schooling/programs/pages/disabilitystandardsforeducation.aspx.
• DEEWR Schools Grants: Under the Schools Assistance Act 2004 (Cth), ss 115-120, the Commonwealth Department of Education, Employment and Workplace Relations administers the Literacy, Numeracy and Special Learning Needs (LNSLN) Programme. LNSLN provides additional targeted funding for students with disabilities. The Schools Grants element of LNSLN aims at improved outcomes for educationally disadvantaged students, including students with disabilities, by contributing funding to government and non-government school education authorities in States and Territories.

Schools Grants funding seeks to target the most educationally disadvantaged school students, including students with disabilities who may face barriers to effective participation at school and who:

• are not achieving (or are at risk of not achieving) a national benchmark standard of literacy and/or numeracy or other appropriate standard of achievement; and/or
• require additional assistance to reach an appropriate standard of achievement.

Schools Grants supports activities such as:

• literacy and numeracy intervention programmes;
• additional specialist learning assistance;
• teachers for students with disabilities and learning difficulties; and
• classroom resources and equipment for students who require extra help to achieve an appropriate standard of learning.

The ACT Department of Education and Training (ACT DET) administers and distributes ACT Schools Grants funding in accordance with the principles of equity, effectiveness and efficiency, and within broad Commonwealth guidelines. ACT DET determines where the greatest needs are for additional assistance and decides the precise amount of funding provided to support schools and students.

For information about access to Schools Grants funding,

• ACT Government schools should contact ACT DET (details at Contacts and Links);
• ACT Catholic schools should contact the Catholic Education Office for the Archdiocese of Canberra and Goulburn ( www.ceo.cg.catholic.edu.au); and
• ACT Independent schools should contact the Association of Independent Schools of the ACT ( www.ais.act.edu.au).

ACT Government services

The Disability Services Act 1991 (ACT) defines disability as:

a disability--

(a) that is attributable to an intellectual, psychiatric, sensory or physical impairment or a combination of those impairments; and

(b) that is permanent or likely to be permanent; and

(c) that results in:

(i) a substantially reduced capacity of the person communication, learning or mobility; and

(ii) the need for continuing support services; and

(d) that may or may not be of a chronic episodic nature.

In order to qualify for disability services in the ACT, a person must:

• satisfy the above definition; and
• be an Australian Citizen or permanent resident; and
• have lived in the ACT for at least the last six months (some exceptions apply to this requirement for example: if you are a resident of the ACT but have been undergoing treatment in hospitals outside of the ACT).

DHCS-Disability ACT

The ACT Department of Disability, Housing and Community Services (DHCS) directly provides a number of accommodation, therapy, information, case management and support services itself, as well as funding and monitoring a range of local government and non-government services. The relevant part of DHCS is known as Disability ACT. For more details see the DHCS website www.dhcs.act.gov.au/disability_act.

ACT DET Student Support Section

The ACT Department of Education and Training, Student Support Section is responsible for policies and programs to support students with additional needs including students with a disability in ACT government schools. The Section administers the provision of disability support and special education services, provides information and undertakes policy development. For contact details see Contacts and Links.

CANaccess

The ACT government has also compiled an online directory of disability services available in the ACT and region, called CANaccess ( www.canaccess.org.au). The site is designed to assist people with disabilities, and those people who care for and work with them.

Types of disability

A. Physical disability

Physical disability is a broad category of disability which may not always be visible and which covers much more than being confined to a wheelchair. It usually involves significant problems with muscle control, skeletal development or joint function. A range of standards, specialist programs and services arising from law or policy are provided to meet the varying needs of people with physical disabilities including access to the built environment and public transport (for example, Discrimination Act 1991 (ACT) s 19 (access to premises), rehabilitation from injury (Disability Services Act 1986 (Cth) Part III)) and the provision of specialised aids and equipment). For more information see Physical Disability.

B. Psychiatric disability

Psychiatric disability, commonly referred to as mental illness, also involves a wide range of conditions including, for example, depression, anxiety disorders and schizophrenia.

The Mental Health (Treatment and Care) Act 1994 (ACT) ('MHTC Act') defines "mental dysfunction"as a "disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion".

The MHTC Act also defines "mental illness" to mean:

a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person and is characterised by the presence in the person of any of the following symptoms:

(a) delusions;

(b) hallucinations;

(c) serious disorder of thought form;

(d) a severe disturbance of mood;

(e) sustained or repeated irrational behaviour indicating the presence of the symptoms referred to in paragraph (a), (b), (c) or (d).

The MHTC Act also refers to the definition of "mental impairment" in the Criminal Code 2002 (ACT)s 27(1). "Mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder". "Mental illness" is defined for this purpose in ss 27(2) and (3) more narrowly than the above definition.

For more information,see MentalHealthLaw.

C. Intellectual disability

Intellectual disability is not separately defined in the ACT. The term is used to cover disabilities which are not physical and which are not psychiatric. An intellectual disability, while it may not be as visible, is still treated as a disability in all the contexts discussed above. In particular:

• the definition of disability in the Discrimination Act 1991 (ACT) includes "intellectual disability or developmental delay", as well as "an illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour";
• the definition of disability in both the Disability Services Act 1991 (ACT) and the Disability Services Act 1986 (Cth) includes an "intellectual" or "sensory" impairment or a combination thereof; and
• the definition of "mental impairment" in the Criminal Code 2002 (ACT)s 27(1) includes "intellectual disability" as well as "senility" and "brain damage".
• the definition of disability in the Disability Discrimination Act 1992 (Cth) includes:

total or partial loss of the person's ...mental functions; or ...a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or ... a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

Advocacy and guardianship

The Public Advocate (PA) is established under the Public Advocate Act 2005 (ACT) and has responsibility for promoting the rights and independence of people with disability of all ages. The PA also has powers to provide advice and assistance, to investigate and to advocate on behalf of people with disabilities and be a guardian of last resort (Public Advocate Act 2005 (ACT) ss 10-12).

When people are unable, because of a disability, to make decisions for themselves guardians and managers may be appointed by the Guardianship and Management of Property Tribunal established under the Guardianship and Management of Property Act 1991 (ACT). This Act uses the concept of impaired decision-making ability which means "impaired because of a physical, mental, psychological or intellectual condition or state, whether or not the condition or state is a diagnosable illness" (s 5).

A guardian makes "lifestyle" decisions, such as those relating to health, accommodation or access to services. A manager makes financial and legal decisions. For more information, see Guardianship and Management of Property.

Sexual offences

The Criminal Code 2002 (ACT) (s 27(1)) defines "mental impairment" which includes "senility, intellectual disability, mental illness, brain damage and severe personality disorder".

Where the accused is a person suffering mental impairment, s 28 of the Criminal Code 2002 (ACT) provides that the accused may avoid criminal responsibility if the impairment prevented the person from controlling their conduct, or from knowing the nature and quality of their conduct or that their conduct was wrong. Whether the person was suffering from a mental impairment is a question of fact which must be proved "on the balance of probabilities".

Where the victim is a person with a disability, this may impair their ability to indicate consent or otherwise to acts of a sexual nature. Section 67 of the Criminal Code 2002 (ACT) provides that consent to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused "by…physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given".

Tenancy

Disability is not defined within the Residential Tenancies Act 1997 (ACT), however s 4 states that the Act does not apply to:

(a) a retirement village; or

(b) a nursing home or hostel for aged or disabled people conducted by an eligible organisation under the Aged or Disabled Persons Care Act 1954 (Cth); or

(c) premises prescribed by regulation.

In effect, any person with a disability or mental illness falling into the above categories receiving residential support services is denied the right to a tenancy agreement subject to the provisions of the Residential Tenancies Act 1997 (ACT).

Rights of People with Disabilities

The rights of people with disabilities are set out in a range of international human rights instruments -- including UN Declarations on the Rights of Disabled Persons (1975), and Mentally Retarded Persons (1971), Principles for the protection of persons with mental illness and the improvement of mental health care (1991), and Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) -- to which the Commonwealth and State Governments are signatories. Many of the rights referenced in legislation flow from these international human rights obligations, despite the fact that Australia's legal system is not generally rights based.

Note: The United Nations is considering proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities. The Draft Convention, if adopted, will provide a disability-specific international human rights instrument with the same status as other conventions.

The main Commonwealth Act dealing with the rights of people with disabilities is the Disability Discrimination Act 1992 (Cth) ('the DDA'), which aims to:

(a) eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:

(i) work, accommodation, education, access to premises, clubs and sport;

(ii) the provision of goods, facilities, services and land; and

(iii) existing laws; and

(iv) the administration of Commonwealth laws and programs; and

(b) ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

(c) promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

In addition the Discrimination Act 1991 (ACT) deals with discrimination, including on the basis of disability. See further Advocacy Services and Chapter 50 Human Rights and Discrimination.

Social security

The Disability Support Pension is a payment for people whose physical, intellectual or psychiatric impairment prevents them from working, or for people who are permanently blind. People with a disability may be eligible for a Disability Support Pension if their "impairment" is permanent and is measured at 20 points or more under the Impairment Tables set out in the Social Security Act 1991 (Cth) (ss 7, 94, 95) (SSA).

People who are employed and who have a temporary impairment or sickness which prevents them working (or, in some cases, studying) may be eligible for Sickness Allowance under the SSA (ss 7, 666).

Carers of people with disabilities may also be eligible for allowances and benefits, such as Carer Allowance (SSA ss 953, 954, 954A) and Carer Payment (SSA s 198).

Carer Allowance is a supplementary payment for carers who provide daily care and attention for:

• adults with a disability, severe medical condition or who is frail aged at home (Carer Allowance (adult)); or
• children with a disability or severe medical condition at home (Carer Allowance (child) - this payment is available to carers and parents).

Carer Payment is an income support payment for people who are unable to support themselves through participation in the workforce while caring for:

• someone with a disability, severe medical condition or who is frail aged (Carer Payment (adult)); or
• a child with a profound disability who has extremely high care needs (Carer Payment (child)).

For more information, see Chapter 43 Social Security Pensions and Contacts and Links.

Financial management

A person with a disability is entitled to handle their own financial affairs unless a manager has been appointed under the Guardianship and Management of Property Act 1991 (ACT). Even where a manager has been appointed, this Act states that, in acting in the best interests of the represented person, a manager should so far as possible support the person with the disability to manage their own finances (s 4). See further Guardianship and Management of Property.

Financial counsellors may be useful in assisting a person with a disability to plan and manage their own finances (to find a financial counsellor, see Counselling and Advice).

Privacy

There is a general right to privacy of personal information under both Commonwealth and ACT laws. The Health Records (Privacy and Access) Act 1997 (ACT) and the Privacy Act 1988 (Cth) allow a person to take action if their privacy is breached (see PrivacyLaw).

However, some of the laws relating to services for people with disabilities contain exceptions to the laws of confidentiality, where information is needed for the care of a patient, or required by government departments or other authorities (see MentalHealthLaw). For general information, see Access to Medical Records and Confidentiality.

Duty of care and negligence

Under common law principles of negligence and the Civil Law (Wrongs) Act 2002 (ACT), care providers owe a duty of care to prevent service users and others from foreseeable injury. However, special protection against liability is provided to volunteers who carry out community work, including care of the disabled (see Part 2.2 of the Civil Law (Wrongs) Act 2002 (ACT)).

Some care providers may feel concern about the degree of risk involved if service users are allowed to make decisions for themselves. It is important to remember that duty of care and the right to a lifestyle that is as close as possible to "normal" are not contradictory. The task of supporting people who have certain vulnerabilities but who also have the right to take risks and make mistakes is a complex one that frequently entails difficult decisions. There are many different views of what is "reasonable" and "unreasonable", but current disability legislation is based on the principle that it is "unreasonable to unnecessarily restrict a person's right to independence". For more information, see below Intellectual Disability.

Capacity and Consent

Contracts

A person with a disability can enter into a contract so long as they have capacity to do so. To have capacity means that the person understands the nature and effect of the contract. If a person lacks legal capacity, the contract is not necessarily a nullity. It is not void but possibly voidable. This means that the disabled person can rescind the contract if it can be shown that the other party acted unconscionably in entering into the contract with the disabled person. For more information, see Legal Capacity and Undue influence and unconscionability. For a fuller treatment see Seddon and Ellinghaus, paras 17.53-17.56.

If a person has a manager appointed under the Guardianship and Management of Property Act 1991 (ACT), any contract that person enters into is not void (s 71(1)) but may be declared void or the rights of the parties may be adjusted by the Guardianship and Management of Property Tribunal, the Magistrates Court or the Supreme Court (ss 71(2)-(5)) after application has been made to one of those bodies within 90 days of the transaction.

It is also possible to obtain an injunction to restrain dealings under s 72 where a person has entered into a contract and there are grounds for thinking that the person should have a manager appointed.

Wills and testamentary capacity

A person with a disability, like anyone else in the community, can make a will as long as they have the capacity to do so.

A person can make a will provided that he or she has testamentary capacity. This is determined by common law rules which are more fully described at Making a Will. A person making a will must:

• understand the nature of the act of making a will;
• the extent of the property he or she is disposing of;
• the claims that those close to the person making the will have on him or her; and
• there must not be any disorder of the mind which affects his or her disposal of property under the will.

The will should be written in simple language, although it is not necessary for the person to be able to read or write. It is most important that when a person with a disability that affects their cognitive capacity is making a will a doctor is present who can testify to testamentary capacity, in order to prevent later disputes about the validity of the will. The best practice is to have a doctor as one of the witnesses to the will, and to have that doctor swear an affidavit that, at the time of making the will, the person understood the nature and effect of what they were doing. The will should be made an exhibit to the affidavit.

If the person making the will has impaired decision-making ability within the meaning of that phrase in the Guardianship and Management of Property Act 1991 (ACT), it is essential to obtain a medical opinion as to the person's testamentary capacity. If the person has testamentary capacity, a copy of the will and affidavit should be sent to the person's guardian and/or manager, so that in managing that person's affairs the guardian and/or manager can take into account the intentions expressed in the will.

It is a good idea to use a lawyer (and preferably one who has experience in working with people with disabilities that affect their cognitive capacity) to draft the will. This can avoid many later problems and possible disputes.

It is not possible for a guardian to make a will for a person with impaired decision-making ability (see Guardianship and Management of Property Act 1991 (ACT)s 7B(b)). The same restriction does not apply to a manager appointed under that Act but probably it was the intention that the restriction applies to managers as well.

Anyone drawing up a will should be aware of the legal responsibility of parents of people with disabilities to provide for their children in their wills. Parents who make little or no allowance for their disabled child in their will may be subject to an application for testator's maintenance. For further information, see Family Provision.

Consent to medical treatment

In general, a person with a disability is able to consent to medical treatment if they are capable of understanding the nature of the treatment, why it is being given and how it will be administered. This is called informed consent, and is discussed in more detail in chapter 52, Health Law.

Specific types of informed consent required under the Mental Health (Treatment and Care) Act 1994 (ACT) (Part 4 Division 4.4 Psychiatric treatment orders and Part 7 Electroconvulsive therapy and psychiatric surgery) are discussed below under C. Medical procedures.

If a person with a disability is not capable of giving informed consent, there are specified procedures for deciding who is allowed to give consent on their behalf. For more information, see Guardianship and Management of Property.

Decisions regarding special medical procedures for young people (under the age of 18) with disabilities affecting their cognitive capacity continue to raise concerns regarding reproductive rights and sterilisation. These procedures are decided on application to the Family Court (generally by a parent or guardian) under the Family Law Act 1975 (Cth), having regard to the best interests of the child (s 67ZC).

Taking instructions from clients with cognitive impairment

It is, of course, important for all legal practitioners to be adequately instructed by their client. When working with clients with cognitive impairment, a conscious effort needs to be made to ensure that they are given ample support and opportunity to make informed decisions. Impairment may be permanent or sporadic, as a result of an intellectual disability, some types of mental illness, acquired brain injury, dementia or the latter stages of an illness or disease, such as HIV/AIDS related dementia and multiple sclerosis. Of course, not all people with these disabilities will have a cognitive impairment. The central issue for those providing legal advice and representation to people with cognitive impairment is the degree to which the person can demonstrate their capacity to provide instructions. This generally involves demonstrating a reasonable understanding of:

• their current circumstances and the circumstances leading them to need legal advice and representation;
• their legal and non-legal options and the risks and benefits of these options; and
• their role in providing instructions to their legal advisor.

The following are suggested ways to assist in ensuring your client is able to provide you with accurate instructions. They may apply to a range of services working with a client with cognitive impairment, and not just to legal practitioners.

• Allow sufficient time to conduct an interview. This means spending time explaining the law and the options available to your client, and eliciting both their understanding of your advice and what they wish to do. This time is also well spent in assessing your client's skills and capacity to instruct and developing their confidence in talking to you.
• Identify any limitations in literacy skills and respond accordingly. Any written material should be carefully explained to your client. Questions or comments may need to be put in a number of ways to ensure the client understands their content.
• Be aware that people perceived as authority figures may easily and unwittingly intimidate some (but not all) people who have a cognitive impairment. For example, be mindful of body language, and ensure that questions are not put in a way that suggests there is a correct or incorrect answer, or an answer you would prefer.
• Take responsibility for explaining things in an accessible and easily understandable way. Ask the person to tell you what they have understood, so you can do a better job if necessary.
• Record relevant events as soon as possible after they have occurred, particularly where poor memory may exist.
• Speak simply. Avoid jargon, abstract concepts and long-winded explanations. Explanations should be given in concrete terms. Use drawings or other methods of representation if necessary.
• Where appropriate, try to ensure that a support person or advocate is available to assist with effective communication between you and your client. Such a person will usually be familiar with any difficulties your client may have in responding to questions or providing an account of events. Be clear, however, on the relationship between yourself, the support person and your client and that you are acting on behalf of your client and not on behalf of the support person or advocate. It is important to get instructions directly from your client to ensure you are acting on their wishes.

Sometimes a client may be unable to provide you with instructions so that you can act on their behalf. There may be a substitute decision-maker to provide instructions on their behalf.

If the person has a manager appointed under the Guardianship and Management of Property Act 1991 (ACT), the manager may have authority to provide you with instructions. The capacity of the manager to instruct you will depend on the authority granted at the time of their appointment.

If there is no manager appointed, it may be necessary to consider an application to have one appointed.

Some courts and tribunals provide other mechanisms for bringing actions. Look at the relevant legislation for the tribunal or court to see if formal appointment of a litigation guardian or next friend is required, or whether another person is able to bring the action on behalf of your client. Litigation guardians can be held personally liable for the costs of the matter before a court or tribunal.

The only circumstances where instruction should be taken from a person other than your client are those where a person who has legal authority to instruct on behalf of your client with cognitive impairment has been appointed, and is acting in what you believe to be your client's wishes and best interest.

If you believe that the instructions you receive from your client's advocate or legally authorised person are not the client's wishes or in their best interest, you should consider challenging the advocate's authority in the proper forum, which is generally the Guardianship and Management of Property Tribunal.

Advocacy

Advocacy is work that is intended to support people in asserting their rights and interests, or that asserts their rights and interests with them.

Advocacy may be for individuals or be about changing laws, systems and policies.

Advocacy Services

Under the Commonwealth State and Territory Disability Agreement (CSTDA), the Commonwealth has major responsibility for funding disability advocacy services.

ACT Advocacy services that have a particular focus on people who have a disability are listed below (see Contacts and Links for full details).

• ACT Disability, Aged and Carer Advocacy Service (ADACAS) www.adacas.org.au;
• Advocacy for Inclusion www.advocacyforinclusion.org;
• Disability Discrimination Legal Service www.ourcanberra.com/Disability_Discrimination.html; and
• Carers ACT www.carersact.asn.au.

Other community and non-government organisations may also be able to assist with advocacy, for example St. Vincent de Paul and Barnardos Australia.

It may also be helpful to contact specific support and advocacy groups for specific disabilities (for example Multiple Sclerosis Australia www.msaustralia.org.au or Motor Neurone Disease Australia www.mndaust.asn.au). See the Carers ACT website www.carersact.asn.au for a useful listing of these groups.

Equal opportunity commissions

It is unlawful to discriminate against any person who has, or has previously had, a disability in the following areas:

• employment (including matters concerning an application for employment, dismissal, terms and benefits of employment, training and promotion);
• provision of goods and services (including banking, retailing, insurance, entertainment);
• education;
• clubs and community organisations (if receiving government assistance or on government land);
• accommodation;
• sport;
• administration of Commonwealth laws and programs; and
• disposal of land.

There are exceptions to the above cases (see Discrimination). It is advisable to contact the ACT Human Rights Commission www.hrc.act.gov.au or the Australian Human Rights Commission (formerly the Human Rights and Equal Opportunity Commission) www.hreoc.gov.au if you believe you have been discriminated against because of a disability.

The ACT Human Rights Commission has a Disability & Community Services Commissioner, whose role is to:

• consider complaints;
• encourage and assist users and providers to make improvements to services and ensure service standards are met; and
• consult, seek advice and encourage participation in decision-making.

The Australian Human Rights Commission also has a dedicated Disability Discrimination Commissioner.

Full contact details for both Human Rights Commissions are provided at Contacts and Links. For more information see HumanRightsAndDiscrimination.

Physical Disability

What Constitutes Physical Disability?

People who use a wheel chair, walking frame or back brace are not the only ones with physical disability. Conditions like chronic fatigue syndrome are invisible but result in physical disability. Physical disability usually involves:

(a) limited control of some or all voluntary muscles, for example, paralysis of the four limbs of a person, referred to as quadriplegia; or

(b) underdeveloped skeletal structure, for example, dwarfism; or

(c) dysfunctional joints, for example, arthritis.

Spinal injury, amputation or acquired brain injury resulting from accidents can cause physical disability. It can also be caused by some medical conditions such as cerebral palsy, spina bifida, muscular dystrophy or atrophy, multiple sclerosis, nervous system diseases, circulatory diseases, respiratory diseases, arthritis, other musculoskeletal disorders, head injury or stroke and post-polio syndrome. Inherited conditions passed on genetically and exposure to drugs or chemicals during pregnancy can also cause physical disability.

Services

The legislative base for services to people with physical disabilities is the Disability Services Act 1986 (Cth) and the Disability Services Act 1991 (ACT).

Other Acts discussed in this chapter and other chapters in relation to provision of services to people with a disability are the Discrimination Act 1991 (ACT) and the Disability Discrimination Act 1992 (Cth).

General Government Services

See Commonwealth Government services and ACT Government Services.

Building Code of Australia

The construction of all new buildings, and renovations to existing buildings, are controlled by the Building Code of Australia (BCA). This code incorporates a number of access requirements.

The BCA is produced and maintained by the Australian Building Codes Board. All States and Territories, including the ACT, have given the BCA the status of building regulations.

The BCA classifies buildings and specifies technical requirements relevant to the design and construction of buildings and other structures belonging to a class. It covers such matters as fire resistance, access and egress, services and equipment, and certain aspects of health and amenity.

The BCA is mandatory only for new buildings or buildings undergoing major refurbishment. Denial of access to buildings not covered by the BCA may be challenged under the Discrimination Act 1991 (ACT) (s 9) or the DDA (s 23).

Unjustifiable hardship

Both the Discrimination Act 1991 (ACT) (s 19) and the DDA (s 23) prohibit refusing access to premises on the ground of disability (see HumanRightsAndDiscrimination).

Under both Acts, the respondent to a complaint has the burden of proving that the adjustments that the person requires, in order not to be treated less favourably, pose an unjustifiable hardship for the respondent who has to make the adjustments (Discrimination Act 1991 (ACT) s 52(1)(b); DDA s 23(2)). "Unjustifiable hardship" does not mean mere inconvenience or relatively minor expense. It involves some suffering. What is unjustifiable hardship to a small business may be insignificant to a large company.

The law does not define unjustifiable hardship. Both the DDA (s 11) and the Discrimination Act 1991 (ACT) (s 46) direct that "all relevant circumstances of the particular case are to be taken into account" in deciding what constitutes unjustifiable hardship. This includes considering:

(a) the nature and effect of the disability;

(b) the benefits the adjustments may have for anyone concerned -- including non-disabled people accessing the premises (for example, wheelchair ramps also help people with prams or trolleys, and enable the business to cater to a wider section of the community and generate added income);

(c) any disadvantage the adjustments may have for anyone concerned;

(d) the costs involved in making the adjustments; and

(e) the financial circumstances of the organisation asked to provide the adjustments.

AS 1428.1

The main technical document referenced by the BCA (see Building Code of Australia) for access is AS 1428.1 -- Design for Access and Mobility, which has been developed by Standards Australia and is mandatory.

Some of the minimum requirements established by AS 1428.1 include:

• accessible parking space -- should have at least a width of 3.2 m to enable a driver to alight, open the passenger side door and assist a person with a disability into a wheelchair, or to allow for an aid loading ramp;
• continuous accessible path of travel -- should be clearly detectable, continuous, slip-resistant and hard surfaced, and should not incorporate any step, stairway or impediment. Some of the technical features of an accessible path of travel include:

(a) a cross fall of no more than 1:40;

(b) maximum gradient on a ramp (over 1520 mm long) of no greater than 1:14;

(c) maximum gradient of a step ramp (less than 1520 mm long) of no greater than 1:18;

(d) handrails on both sides of a ramp; and

(e) unobstructed vertical clearance of 2 m;

• accessible entrances should have a minimum clear opening of 800 mm and a suitable circulation space. The door handle and related hardware should be of the type that allows the door to be unlocked and opened with one hand, and should be fitted at a height which is easy to reach from a wheelchair.

At the time of writing (Jan 2009) the Building Code of Australia, AS 1428.1, AS 1428.4 -- Tactile Indicators (sections 1 and 2), and AS 2890.1 -- Off Street Parking for People with Disabilities (section 6) were under review as part of the development of a DDA Access to Premises Standard.

On 2 December 2008, draft Disability (Access to Premises - Buildings) Standards, together with a number of associated documents, were tabled in the House of Representatives. These can be accessed at www.ag.gov.au/premisesstandards. On 3 December 2008 the Government referred the draft Premises Standards to the House of Representatives Standing Committee on Legal and Constitutional Affairs, asking the Committee to conduct consultations on the draft Premises Standards and to report to Parliament in the first half of 2009. Submissions closed on 27 February 2009.

The proposed new Disability (Access to Premises - Buildings) Standards are not yet law, so the BCA regime in AS 1428.1 still applies (as outlined above). As such, only a tribunal or court may determine whether a building has been constructed with equal or adequate access facilities for people with disabilities. When the Disability (Access to Premises - Buildings) Standards become law, the BCA compliance and enforcement regime may monitor the course of construction of a building so that both the owner and user will be assured of compliance with access requirements.

Due to the technical nature of the standards, it is advisable to involve an access expert in conducting an access audit.

Access to transportation

As part of the Commonwealth-State Disability Agreement (see Government services), the Disability Standards for Accessible Public Transport became law on 23 October 2002. The Transport Standards are accompanied by Guidelines. They are available at the following web pages:

• Transport standards: www.comlaw.gov.au/Details/F2011C00213
• Guidelines: www.comlaw.gov.au/Details/C2004Q00676

The Transport Standards set out a 30-year timetable by which almost all public transport will become accessible to people with a disability. Twenty-five per cent must be accessible within five years, 55 per cent within 10 years, 90 per cent within 15 years (80 per cent for buses) and 100 per cent within 20 years (30 years for trains and trams). Hence, by 2012, transport providers should have retrofitted or purchased specifically designed units so that one in every two vehicles is accessible. This does not mean that they have no present obligation to provide disability access. For example, failure of a bus company to provide an accessible bus service may be challenged under the Discrimination Act 1991 (ACT) s 20, or under the DDA s 24. The bus company would usually rely on the defence of "unjustifiable hardship" (Discrimination Act 1991 (ACT) s 53; DDA s 24(2)).

Transportation that is chartered privately needs to comply with the prohibition against discrimination in the provision of goods and services (Discrimination Act 1991 (ACT) s 20; DDA s 24).

Intellectual Disability

What is Intellectual Disability?

Intellectual disability is the term used in Australia to describe individuals who have impaired cognitive functioning evidenced in childhood. The same condition is described as "learning disability" in the United Kingdom and "mental retardation" in the United States.

As noted above, intellectual disability is not separately defined in legislation in the ACT. See also MentalHealthLaw.

Current internationally accepted diagnostic criteria for the condition are now more explicit. For example the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) states the diagnostic criteria are:

1. Significant sub-average intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants a clinical judgement of significantly sub-average intellectual functioning).
2. Concurrent deficits or impairments in present adaptive functioning (i.e. the person's effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas; communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety.
3. The onset is before age 18.

These diagnostic criteria may be useful in arguing a person has an intellectual disability in courts.

Generalisations about intellectual disability and therefore about the capacity of a person with an intellectual disability frequently underestimate a person's abilities. Intellectual disability may, however, limit a person's functional skills, ability to learn and understanding of concepts.

In the past, there has been general confusion between intellectual disability and mental illness. Some people may have both an intellectual disability and a mental illness. See also B Psychiatric Disability and MentalHealthLaw.

In the ACT, persons with an intellectual disability are covered by the same discrimination and services legislation as persons with other kinds of disabilities (see Relevant Legislation).

When dealing with the legal, and particularly the criminal justice, system, people with an intellectual disability are often greatly disadvantaged, whether as suspects, victims or witnesses.

Relevant Legislation

As noted above, intellectual disability is not separately defined in the ACT. The term is used to cover disabilities which are not physical and which are not psychiatric.

In the ACT, persons suffering from:

• "intellectual disability or developmental delay", and/or
• "an illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour"

are still covered by the definition of disability in the Discrimination Act 1991 (ACT).

At Commonwealth level, a person who has

total or partial loss of the person's ...mental functions; or ...a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or ... a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

is still covered by the definition of disability in the Disability Discrimination Act 1992 (Cth).

In the context of disability services, persons with an "intellectual" or "sensory" impairment or a combination thereof are included in the definition of disability in both the Disability Services Act 1991 (ACT) and the Disability Services Act 1986 (Cth).

Under ACT criminal law, "intellectual disability" "senility" and "brain damage" are covered by the definition of "mental impairment" in the Criminal Code 2002 (ACT)s 27(1).

Services

Government services

See Commonwealth Government services and ACT Government Services.

Advocacy services

Services that advocate on behalf of, or in support of, people who have an intellectual or other disability are discussed at Advocacy.

Negligence and Duty of Care

Under common law principles of negligence and the Civil Law (Wrongs) Act 2005 (ACT), care providers owe a duty of care to prevent service users and others from foreseeable injury. However, special protection against liability is provided to volunteers who carry out community work, including care of the disabled (see Part 2.2 of the Civil Law (Wrongs) Act 2005 (ACT)).

This can lead to some confusion and concern on the part of care providers where they feel that there may be a high degree of risk if service users are given the opportunity to make decisions for themselves. For example, when a resident is perceived by staff as being sexually naive but has to be allowed to go out independently, staff may be concerned about the resident's vulnerability to potential sexual abuse.

It is important for care providers to remember that duty of care and the right to a lifestyle that is as close as possible to "normal" are not contradictory. However, the job of supporting people who, on the one hand, have certain vulnerabilities but who, on the other hand, have all the ordinary human rights to take risks and to make mistakes is a complex one that frequently entails difficult decisions. There are many different views of what is "reasonable" and what is "unreasonable" -- but the principles upon which current disability legislation and philosophies are based make it very clear that it is not reasonable to unnecessarily restrict a person's right to independence.

Criminal Justice System

The criminal justice system is not geared to dealing with people with intellectual disabilities. For this and other reasons, crimes against or by people with an intellectual disability may often go unreported. Police may also be reluctant to charge or prosecute offences against a person who has an intellectual disability, or perpetrated by a person with such a disability, because of concerns about the reliability of witnesses or issues to do with the person's capacity to form criminal intent. Within some organisations there may also be an "institutional culture", which views problems occurring within that facility as requiring resolution internally rather than by the justice system.

The issues and procedures relating to people with intellectual disabilities who become involved with the criminal justice system are discussed in Disability and Criminal Justice.

Guardianship and Management of Property

Introduction

When people are unable, because of their disability, to make decisions for themselves, guardians and managers are appointed under the Guardianship and Management of Property Act 1991 (ACT) ('the GMP Act') by the ACT Civil and Administrative Tribunal (the Tribunal) (before 2 February 2009 by the Guardianship and Management of Property Tribunal) . An act or omission of a guardian or manager under the GMP Act has effect as if it were an act or omission of the person and that person had the legal capacity for the act or omission (s 13).

A guardian makes "lifestyle" decisions, such as those relating to health, accommodation or access to services. A manager makes financial and legal decisions. The person for whom a guardian or manager is appointed is known as the "protected person".

The protected person must have "impaired decision-making ability"in order for a guardian or manager to be appointed (see below under Important concepts).

The authority to appoint guardians and managers, and to reassess and remove them, is vested in the Tribunal. Its procedures are set out in the GMP Act Parts 3 and 4.

Important Concepts

The Act sets out some important concepts which are broadly concerned to ensure that a person's autonomy is interfered with only to the extent necessary to protect that person's interests.

A person's interests

The purpose of the legislation is to protect a person's interests. These are set out in s 5A of the GMP Act.

A person's interests include the following:

(a) protection of the person from physical or mental harm;

(b) prevention of the physical or mental deterioration of the person;

(c) the ability of the person to--

(i) look after himself or herself;

(ii) live in the general community;

(iii) take part in community activities; and

(iv) maintain the person's preferred lifestyle (other than any part of the person's preferred lifestyle that is harmful to the person);

(d) promotion of the person's financial security;

(e) prevention of the wasting of the person's financial resources or the person becoming destitute.

Impaired decision-making ability

A person's decision-making ability may be impaired because of a physical, mental, psychological or intellectual condition or state, whether or not the condition or state is a diagnosable illness (s 5). However, the GMP Act s 6A is concerned to protect a person against too-hasty judgment of the person's capacities. It provides what does not amount to impaired decision-making ability.

A person must not be taken to have a physical, mental, psychological or intellectual condition only because the person--

(a) is eccentric;

(b) does or does not express a particular political or religious opinion;

(c) is of a particular sexual orientation or expresses a particular sexual preference;

(d) engages or has engaged in illegal or immoral conduct; or

(e) takes or has taken drugs, including alcohol (but any effects of a drug may be taken into account).

In other words, one of these characteristics by itself does not indicate impaired decision-making ability but a person exhibiting one of these characteristics may nevertheless have impaired decision-making ability having regard to other characteristics or symptoms.

Principles to be followed by decision-makers

Once a substitute decision-maker is appointed the GMP Act sets out principles which should guide the decision-maker when making decisions for the protected person. These are set in s 4(2) of the GMP Act.

The decision-making principles to be followed by the decision-maker are the following:

(a) the protected person's wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person's interests;

(b) if giving effect to the protected person's wishes is likely to significantly adversely affect the person's interests--the decision-maker must give effect to the protected person's wishes as far as possible without significantly adversely affecting the protected person's interests;

(c) if the protected person's wishes cannot be given effect to at all--the interests of the protected person must be promoted;

(d) the protected person's life (including the person's lifestyle) must be interfered with to the smallest extent necessary;

(e) the protected person must be encouraged to look after himself or herself as far as possible;

(f) the protected person must be encouraged to live in the general community, and take part in community activities, as far as possible.

Before making a decision, the decision-maker must consult with each carer of the protected person (s 4(3)) but may also consult others (s 4(5)). However, the decision-maker must not consult with a carer if the consultation would, in the decision-maker's opinion, adversely affect the protected person's interests (s 4(4)).

A "carer" is a person who looks after the person with impaired decision-making ability other than for financial reward or equivalent (s 6). This would normally be family members or family friends. A person may have several carers.

Least restrictive powers

The powers given to a person's guardian or manager are to be no more restrictive of the person's freedom of decision and action than is necessary to achieve the purpose of the order (s 11).

Things a guardian cannot do

Once a guardian is appointed, the GMP Act s 7B set out limits on the guardian's substitute decision-making powers. The powers do not include the power to discipline the person or the power to do any of the following things for the person:

(a) vote in an election;

(b) make a will or other testamentary instrument;

(c) consent to the adoption of a child;

(d) give a consent to a marriage;

(e) give a consent required for a prescribed medical procedure for the person (see below under Guardians' Powers).

Applying to the Tribunal

The Act does not provide who may apply to the Tribunal except in the case of an application for appointment of a manager for a missing person's property.

Missing person

For a missing person, that person's domestic partner, a relative, a carer, the Attorney-General, the public trustee, the public advocate or anyone else who has an interest in the property of the missing person may apply to the Tribunal (s 8AB).

Person with impaired decision-making ability

In any other case, anyone may apply to the Tribunal for an order appointing a guardian and/or a manager, in respect of a person with impaired decision-making ability who has attained the age of 18 years. A guardian or manager can be appointed for a child but the order does not take effect until the child turns 18 (s 8A).

All applications should be made in writing to the president of the Tribunal (Guardianship and Management of Property Regulations 1991 (ACT) reg 4).

The inquiry

An order cannot be made to appoint a guardian or manager unless an inquiry is conducted by the Tribunal (s 33) except in cases of emergency (ss 67, 68, 68A and 68B). The inquiry is conducted in public unless the Tribunal decides otherwise (s 37) but publication of the proceedings is forbidden (s 49). The inquiry should be conducted informally so far as possible (s 37(2)) and should not be held in a court unless no other premises are available (s 34(2)).

Section 35 provides that at least seven days before the Tribunal holds an inquiry into a matter in relation to a person, the presidential member must, so far as practicable, give written notice of the inquiry to--

(a) the proposed protected person;

(b) the person's domestic partner, parents, brothers and sisters;

(c) each child of the person;

(d) if the person has a carer who would not otherwise be given written notice of the inquiry under this section--the carer; and if the person has a guardian--the guardian; and

(e) if there is a manager of the person's property--the manager;

(f) if an application is made under s 8AA (manager for missing person's property)--the applicant;

(g) the public advocate;

(h) if the matter relates to property--the public trustee; and

(i) if the matter relates to an enduring power of attorney--each attorney under the power of attorney.

This list is not exhaustive so that notice can be given to others.

Each person to whom notices are sent (and others with leave of the Tribunal) may appear and make representations to the Tribunal in person or through an agent or lawyer (s 36).

The Tribunal has extensive powers to obtain evidence relevant to an inquiry (s 41) including ordering a medical examination of the person in respect of whom the inquiry is being held (s 39).

Emergency orders

The Tribunal may make a temporary (maximum 10 days) emergency order appointing the public advocate as a guardian (s 67(1)(a)) or the public advocate or the public trustee as a manager (s 67(1)(b)) without holding an inquiry.

Under s 68, on the application of the public advocate or a judge or magistrate, the Tribunal may issue a warrant authorising the public advocate, with police officers that may be required, and using the force that is necessary and reasonable, to enter a place and remove a person who is in peril and who is being unlawfully detained. The section sets out a detailed procedure for the implementation of this emergency power.

The Tribunal is empowered under s 68A to make an emergency order under s 75 of the Powers of Attorney Act 2006 (ACT) which deals with giving a direction to an attorney appointed unde an enduring power of attorney.

The Tribunal is also empowered under s 68B to revoke a health direction given under the Medical Treatment (Health Directions) Act 2006 (ACT) if a guardian has been appointed for the person.

Guardians and Managers

The Act sets out the criteria which must be considered before an order to appoint a guardian or manger is made.

Who can be appointed?

The public advocate or an individual may be appointed as a guardian (s 9(1)). The public advocate, the public trustee, a trustee company or an individual may be appointed as a manager (s 9(2)). A person can be appointed as both a guardian and manager and it is possible to appoint persons as joint guardians or managers (s 9(3)). The public advocate, the public trustee or a trustee company cannot be appointed if a suitable individual has consented to be appointed (ss 9(4) and (5)). An individual must consent to the appointment in writing (s 10(1)).

A guardian or manager appointed in another jurisdiction can register the appointment with the ACT Tribunal (s 12).

A person who acts as manager or guardian is entitled to fees and expenses payable out of the protected person's property (ss 15 and 75)

A. Suitability

There are various criteria which prevent an individual from being appointed as a guardian or as a manager, such as previous convictions, bankruptcy or unwillingness to abide by the decision-making principles (ss 10(2) and (3)). Further, the Tribunal must, when deciding whom to appoint, take into account the wishes of the protected person, existing relationships and compatibility, availability and accessibility of the proposed guardian or manager, competence and potential conflict of interest (s 10(4)). The fact that the person to be appointed is a domestic partner or relative of the protected person does not necessarily indicate a conflict of interest (s 10(5)).

Guardians

A. Criteria

Under s 7(1) relating to appointment of a guardian, the Tribunal must be satisfied that:

(a) the person in respect of whom an inquiry is conducted has impaired decision-making ability in relation to a matter relating to the person's health or welfare;

(b) while the person has the impaired decision-making ability--

(i) there is, or is likely to be, a need for a decision in relation to the matter; or

(ii) the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person's health, welfare or property; and

(c) if a guardian is not appointed--

(i) the person's needs will not be met; or

(ii) the person's interests will be significantly adversely affected.

B. Powers

Under s 7(3) the powers that may be given to a person's guardian include the following:

(a) to decide where, and with whom, the person is to live;

(b) to decide what education or training the person is to receive;

(c) to decide whether the person is to be allowed to work;

(d) if the person is to be allowed to work--to decide the nature of the work, the place of employment and the employer;

(e) to give, for the person, a consent required for a medical procedure or other treatment (other than a prescribed medical procedure) -- see below;

(f) to bring or continue legal proceedings for or in the name of the person.

These powers are not exhaustive; the Tribunal can confer other powers if necessary (s 7(2)).

C. Medical procedures

As to the power to consent to a medical procedure, the guardian must have regard to any wishes expressed by the protected person in an enduring power of attorney if the power is revoked by the guardianship order (s 8B).

Once a guardian is appointed with a power to consent to medical procedures, the protected person does not have the legal capacity to consent (s 69(1)). If the person does purport to consent, a doctor who acted in good faith is protected against legal liability (s 69(3)).

Prescribed medical procedure (that is, a procedure which a guardian cannot consent to) means:

(a) an abortion;

(b) reproductive sterilisation;

(c) a hysterectomy;

(d) a medical procedure concerned with contraception;

(e) removal of non-regenerative tissue for transplantation to the body of another living person; or

(f) treatment for mental illness, electroconvulsive therapy or psychiatric surgery; or

(g) any other medical or surgical procedure prescribed in the regulations.

In such a case it would be necessary to apply under s 70 to the Tribunal to obtain authorisation for a prescribed medical procedure other than a treatment for mental illness (which is dealt with under the Mental Health (Treatment and Care) Act 1994 (ACT)). There are detailed criteria which the Tribunal must take into account in making an order under s 70.

D. Unfitness to plead

Under s 7A if the Supreme Court gives a direction under the Crimes Act 1900 (ACT) s 316 (Special hearing), the Tribunal must appoint a guardian for the accused with power to make an election mentioned in that section. (The special hearing is to determine whether the accused is fit to plead to a crime. The election that must be made is between trial by judge or trial by jury.)

Managers

A. Criteria

Under s 8(1) relating to appointment of a manager, the Tribunal must be satisfied that--

(a) the person in respect of whom an inquiry is conducted has impaired decision-making ability in relation to the person's financial matters or a matter affecting the person's property; and

(b) while the person has the impaired decision-making ability--

(i) there is, or is likely to be, a need for a decision in relation to the matter; or

(ii) the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person's health, welfare or property; and

(c) if a manager is not appointed--

(i) the person's needs will not be met; or

(ii) the person's interests will be significantly adversely affected.

B. Powers

Under s 8(2) the Tribunal may appoint a manager to manage all, or a stated part of, the person's property, with the powers that the Tribunal is satisfied are necessary or desirable to allow the manager to make decisions in relation to the property, in accordance with the decision-making principles. The powers that may be given to a person's manager are the powers that the person would have if the person were legally competent to exercise powers in relation to the person's property (s 8(3)).

A manager must not enter into transactions where the manager would be in a conflict of interests unless the Tribunal authorises the transaction (s 14(1)). The manager must keep the protected person's property separate from the manager's property (s 14(2)).

C. Capacity of protected person to enter into transactions

Once a manger has been appointed, the protected person does not lose capacity to enter into transactions. Instead the transaction can be reviewed within 90 days and the Tribunal, the Magistrates Court or the Supreme Court can adjust the rights of the parties, including confirming or revoking the transaction (s 71).

It is also possible for the Tribunal to grant an injunction to restrain the making or implementing of a transaction (s 72). The injunction is granted for three days during which a management order is sought from the Tribunal but can be extended while the inquiry is being conducted. A person having notice of an injunction commits an offence if the injunction is infringed. Sections 73 and 74 deal with criminal liability under the GMP Act.

D. Missing persons

There are special provisions for the appointment of a manager with respect to the property of a person who is missing (ss 8AA-8AC, 27A, 30A and 31(2)).

E. Persons living outside the ACT

It is possible for the Tribunal to appoint a manager for property located in the ACT owned by a person who lives elsewhere if it would be impractical to appoint a manager in the other jurisdiction (s 8A).

Supervision, advice and review

A. Managers and guardians

The Tribunal may give a direction to a guardian or manager (s 16). A manager or guardian can apply to the Tribunal for advice about decisions that have to be made and, if the advice is followed, the manager or guardian is taken to have made proper decisions so long as the manager or guardian did not conceal relevant evidence when seeking advice (s 18).

The Tribunal may on application or on its own motion at any time review an order appointing a manager or a guardian and, if necessary, vary or revoke the order (s 19(1)). The Tribunal must in any case review orders every three years (s 19(2)).

B. Managers

There are special provisions which regulate the administration of the protected person's money and property. These are:

• a manager is entitled to have access to relevant documents including the person's will (s 20);
• the manager may make payments for the maintenance and life needs of the person, including to a guardian and to the protected person, having regard to the overall financial position of the person and the person's wishes (s 21);
• interest or income becomes the manager's responsibility (s 22);
• the manager may execute instruments (s 23);
• investment decision must be made in accordance with the Trustee Act 1925 (ACT) or as the Tribunal orders (s 24);
• if the manager is responsible for real property, the manager must lodge a copy of the order with the Registrar-General of land titles (s 25);
• the manager must file accounts with the public trustee in accordance with reg 6 of the Guardianship and Management of Property Regulations 1991 (ACT) (within 28 days of appointment and annually thereafter) (s 26);
• the accounts are subjected to the public trustee's scrutiny and, if necessary, the Tribunal's (s 27).

Cessation of guardianship or management

A guardian or manager may resign by notifying the president of the Tribunal in writing (s 28). Guardianship or management ends with the death of the protected person (ss 29-30).

The Tribunal may terminate an order if there is evidence that a manager or guardian is not suitable (s 31).

Where joint managers or guardians were appointed, the removal of one does not affect the remaining managers or guardians (s 32(1) and (2)).

If the public advocate becomes aware that a protected person no longer has a manager or guardian, the public advocate must notify the Tribunal (ss 36(3)-(6)).

Enduring Powers of Attorney

Introduction

A power of attorney is a formal arrangement where a person (the principal) confers a power on another (the attorney) to make decisions on behalf of the principal. Under common law principles an ordinary (or general) power of attorney lapses once the principal becomes incapacitated (now codified in s 57 of Powers of Attorney Act 2006 (ACT). To overcome this common law rule, it was necessary to create a new form of power of attorney -- an enduring power of attorney --so that the power continues to operate after the principal becomes incapacitated.

Both general powers of attorney and enduring powers of attorney are regulated by the Powers of Attorney Act 2006 (ACT) ('the PA Act').

Enduring powers of attorney

In this chapter concerned with disability, general powers of attorney are not discussed except where this is necessary for dealing with enduring powers of attorney. Instead the focus is on enduring powers of attorney which can be used by persons to organise their affairs in contemplation of the possibility that they will not, at some stage, be able to manage their affairs. Enduring powers of attorney in many ways are similar to guardianship orders (dealing with lifestyle decisions, including consent to medical treatment) and management orders (dealing with money and property decisions). Through an enduring power of attorney, an adult person can appoint someone before he or she becomes incapable instead of the Guardianship and Management of Property Tribunal (the Tribunal) appointing a guardian or manager after incapacity.

There is considerable interaction between the Powers of Attorney Act 2006 (ACT)and the Guardianship and Management of Property Act 1991 (ACT). The Tribunal has a major role in supervising enduring powers of attorney.

Enduring Power of Attorney

Definition

As noted, an enduring power of attorney is a power of attorney made by an adult principal under the PA Act that operates after the principal develops impaired decision-making capacity (ss 8 and 32(1)).

Capacity of principal

The making of a power of attorney (of either type) does not take away the principal's capacity to make decisions while he or she is legally capable of making decisions (s 30).

A person for whom a guardian or manager is appointed under the Guardianship and Management of Property Act 1991 (ACT)cannot make an enduring power of attorney unless the Tribunal approves the provisions of the power (s 14(4)).

When can it be used?

An enduring power of attorney operates as a general power of attorney in relation to money and property while the principal has decision-making capacity (s 31(1)).

A. Impaired decision-making capacity

An enduring power of attorney can be used when the principal has impaired decision-making capacity (s 31(2)). Rather strangely "impaired decision-making capacity" is defined differently in this Act from the definition of "impaired decision-making ability" in the Guardianship and Management of Property Act 1991 (ACT) (see Impaired decision-making ability). It exists when a "person cannot make decisions in relation to the person's affairs or does not understand the nature or effect of the decisions the person makes in relation to the person's affairs" (s 9(2)). There is a similar safeguard in this Act as in the Guardianship and Management of Property Act 1991 (ACT)(again, see (see Impaired decision-making ability) against making a too-hasty conclusion that a person has impaired decision-making capacity just because the person is eccentric (s 91).

A medical certificate can be obtained on the question of impaired decision-making capacity (s 87). The Tribunal can declare whether a person has impaired decision-making capacity either generally or the declaration may relate only to a property matter, personal care matter or health care matter (s 78).

Appointment of Attorney

The Act provides a form for the appointment of an attorney under an enduring power of attorney. The form is found on the ACT Legislation register at www.legislation.act.gov.au/af/2007-52/default.asp and is called "Powers of Attorney Act 2006--Form -AF2007-52- Enduring power of attorney". This form must be used (s 96). It does not matter if the form is executed inside or outside the ACT (s 24).

The form, once executed, in taken to be a deed (s 29).

An attorney can be appointed to make decisions in relation to property matters, personal care matters (for example, life style decisions) and health care matters. The principal must specifically choose each of these three in the form. Each is defined in the PA Act with numerous examples, "property matter" in s 10, "personal care matter" in s 11 and "health care matter" in s 12. Certain decisions - "special personal matter" and "special health care matter" - are excluded (see B. Things an attorney cannot do -- personal and health decisions).

Formalities

A power of attorney must usually be signed by the principal and the signature must be witnessed by two adult witnesses who sign and insert the date in the presence of the principal and each other (s 19). The Act does also cater for someone signing on behalf of the principal but this would presumably only apply to the situation where the principal was physically unable to sign (ss 20 and 22(2)).

The witnesses must be adults and must not be the attorney appointed under the power or, in the case where someone signs on behalf of the principal, that person. Further only one of the witnesses to the power of attorney can be a relative of the principal or the attorney (s 21(2)). One of the witnesses for an enduring power of attorney must be a person who can witness a statutory declaration (s 21(3)). The list of persons who can witness statutory declarations is found in Schedule 2 of the Statutory Declarations Regulations 1993 (Cth).

The power of attorney must include a certificate signed by each witness to the effect that the principal signed the power of attorney voluntarily in the presence of the witness; and, at the time the principal signed the power of attorney, the principal appeared to the witness to understand the nature and effect of making the power of attorney (s 22(1)).

The attorney appointed under an enduring power of attorney must sign that he or she has accepted the appointment (s 23).

A. Principal's understanding

In forming a view whether the principal appeared to the witness to understand the nature and effect of making the power of attorney, the witness must satisfy himself or herself of various matters set out in s 17. They include:

(a) that the principal may, in the power of attorney, state or limit the power to be given to an attorney;

(b) that the principal may, in the power of attorney, instruct the attorney about the exercise of the power;

(c) when the power under the power of attorney can be exercised;

(d) that, if the power under a power of attorney can be exercised for a matter, the attorney has the power to make decisions in relation to, and will have full control over, the matter subject to terms or information about exercising the power that are included in the power of attorney;

(e) that the principal may revoke the power of attorney at any time the principal is capable of making the power of attorney;

(f) for enduring powers of attorney only--

(i) that the power given by the principal continues even if the principal becomes a person with impaired decision-making capacity; and

(ii) that, at any time the principal is not capable of revoking the power of attorney, the principal cannot effectively oversee the use of the power.

In the absence of evidence to the contrary, a principal who makes a power of attorney is taken to understand the nature and effect of making the power of attorney (s 18).

Who can and cannot be appointed as attorney

A corporation, other than the public trustee or a trustee company, cannot be appointed as an attorney under an enduring power to manage money or property (s 14(1)(a)). A corporation of any type cannot be appointed when the power includes lifestyle and health decisions (s 14(2)). A bankrupt cannot be appointed (s 14(1)(b)). The public advocate can be appointed but only for lifestyle and health decisions (s 14(3)).

A. Joint attorneys

It is possible to appoint more than one attorney either jointly or by giving each attorney different decision-making functions (s 25). If the power does not specify otherwise, two or more attorneys will be jointly responsible (s 26). If joint attorneys cannot agree, either attorney, or an interested person, may apply to the Tribunal for directions or an order (s 27). An "interested person" is an attorney, the principal, a relative of the principal, the public advocate, the public trustee, a guardian of the principal or a manager of the principal (s 74).

If three or more attorneys are appointed but all do not accept the appointment, then so long as two or more accept they may act as attorneys so long as the power did not specify that all must accept (s 28).

Operation of Enduring Power of Attorney

A principal may state in a power of attorney when, and how, power under the power of attorney is exercisable (s 16(1)). However, this is qualified by s 32(2)(b) which provides that a power under an enduring power of attorney can be exercised whether or not a condition about when the power is to start to operate is satisfied if the principal has impaired decision-making capacity.

Things attorney can and cannot do

A. Authorising others to act

An attorney under an enduring power cannot authorise another to exercise the powers conferred unless the document specifically provides for such third-party involvement (ss 33(2)-(4)).

B. Things an attorney cannot do -- personal and health decisions

A power of attorney of any kind cannot authorise the attorney to make decisions relating to "special personal matters" or "special health care matters" (ss 35-37).

Special personal matters are:

• making or revoking the principal's will;
• making or revoking a power of attorney for the principal;
• exercising the principal's right to vote;
• consenting to the adoption of a child of the principal who is under 18 years;
• consenting to the marriage of the principal.

Special health care matters are:

• removal of non-regenerative tissue from the principal while alive for donation to someone else;
• sterilisation of the principal if the principal is, or is reasonably likely to be, fertile;
• termination of the principal's pregnancy;
• participation in medical research or experimental health care;
• treatment for mental illness;
• electroconvulsive therapy or psychiatric surgery;
• health care prescribed by regulation.

Sterilisation or abortion decisions can be made if the primary purpose is to prevent or treat a serious condition, for example, cancer.

A power granted under the Powers of Attorney Act 1956 (ACT), s 13(1)(b)(ii) relating to the power to consent to organ donation continues to operate despite s 35(b) of the PA Act (s 94). Note: the Powers of Attorney Act 1956 was repealed on 30 May 2007 by the Powers of Attorney Act 2006 (ACT).

It is possible to apply to the Tribunal under s 70 of the Guardianship and Management of Property Act 1991 (ACT)to obtain authorisation for a prescribed medical procedure other than a treatment for mental illness (which is dealt with under the Mental Health (Treatment and Care) Act 1994 (ACT)). There are detailed criteria which the Tribunal must take into account in making an order under s 70.

C. Gifts

An enduring power of attorney does not authorise the attorney to make a gift of all or any of the principal's property to anyone else unless the power of attorney expressly authorises the making of the gift (s 38). If the power does include a general power to make gifts, then gifts may be made to a relative or close friend of the principal for special events or to a charity that the principal would have donated to but the amount must be reasonable having regard to the principal's financial position (s 39).

D. Living expenses

The attorney can pay for living expenses (housing, food, education, transportation and medical expenses) of a named person if the power expressly authorises the payment of reasonable living expenses for that person but the amounts must be reasonable in the light of the financial position of the principal (s 40).

E. Dependants

An attorney for a property matter under an enduring power of attorney may provide from the principal's assets for the needs of a dependant of the principal so long as the amounts spent are reasonable having regard to the principal's financial position (s 41).

Obligations of attorney when making decisions

Section 44 of the PA Act provides that an attorney under an enduring power must, to the maximum extent possible, make decision in accordance with the principles set out in Schedule 1 of the PA Act. Schedule 1 sets out extensive guidelines dealing with ensuring:

• access to family members and relatives;
• human worth and dignity;
• role as a member of society;
• participation in community life;
• quality of life;
• participation in decision-making;
• maintenance of existing supportive relationships;
• maintenance of cultural and linguistic environment and values;
• confidentiality;
• health care.

An attorney under an enduring power is entitled to have access to any information which is relevant to the task of decision-making for a principal with impaired capacity (s 45).

A. Health care

If the attorney is given power to make health care decisions, Schedule 1 cl 1.11 provides that the principal is entitled to have decisions made in the way least restrictive of the principal's rights and freedom of action and is, in the attorney's opinion, necessary and appropriate to maintain or promote the principal's health and wellbeing or is, in all the circumstances, in the principal's best interests.

The principal's wishes in relation to health care matters, and any information provided by the principal's health care provider, must be taken into account when an attorney decides what is appropriate in the exercise of power for a health care matter.

Under s 46(2), an attorney under an enduring power of attorney must not ask for medical treatment to be withheld or withdrawn from the principal unless--

(a) the attorney has consulted a doctor about--

(i) the nature of the principal's illness; and

(ii) any alternative forms of treatment available to the principal; and

(iii) the consequences to the principal of remaining untreated;

and

(b) the attorney believes, on reasonable grounds, that the principal would ask for the medical treatment to be withheld or withdrawn if the principal--

(i) could make a rational judgment; and

(ii) were to give serious consideration to the principal's own health and wellbeing.

In such a case, the principal is entitled to relief from pain, suffering and discomfort to the maximum extent that is reasonable in the circumstances and to reasonable provision of food and water (s 86).

If a health professional considers that an attorney has made a decision relating to health care that is not in the best interests of the principal, the health care worker can inform the public advocate (s 85).

If a power of attorney was made under the former Medical Treatment Act 1994 (ACT) and was in force immediately before the commencement of the PA Act, the power to consent to medical treatment continues to operate (s 95). Note: the Medical Treatment Act 1994 was repealed on 30 May 2007 by the Medical Treatment (Health Directions) Act 2006 (ACT).

A person in charge of a health care facility is obliged to check whether a patient has a relevant enduring power of attorney and should keep a copy with the patient's records (s 49).

Ending an Enduring Power of Attorney

Resignation

An attorney can normally resign but with an enduring power of attorney, if the principal has impaired decision-making capacity, the attorney must seek leave of the Tribunal (which can then appoint a guardian or manager if necessary) (s 53(2)).

Revocation

The principal can revoke a power of attorney even if it is expressed to be irrevocable (ss 54-5). The section does not provide for the possibility that the principal may have impaired decision-making capacity and the effect this may have on a purported revocation. In such a case, it would obviously be advisable to seek guidance or an order from the Tribunal.

A power may also be revoked if its terms indicate it was only to have temporary operation (s 56).

A. Marriage and civil partnerships

An enduring power of attorney is revoked by the principal's marriage or entering into a civil partnership unless the power expresses to the contrary (s 58). If an attorney under an enduring power of attorney is the spouse or civil partner of the principal, the power is revoked by the ending of the marriage or civil partnership (s 59).

B. Death

A power of attorney is ended by the death of either the principal or the attorney (ss 60-1).

C. Bankruptcy and liquidation

An enduring power of attorney is revoked by the attorney becoming bankrupt to the extent that the power conferred a power to make property decisions (s 62). If a corporation is appointed an attorney and it is wound up or goes into liquidation then the power is revoked to the extent that it gave power to the corporation (s 64).

D. Incapacity of the attorney

An enduring power of attorney is revoked by the attorney's suffering from impaired decision-making capacity (s 63).

E. Multiple attorneys

If two or more attorneys are given separate powers, the ending of one of the appointments does not affect the others (s 65). If two or more attorneys are jointly appointed, and one appointment is revoked then the remaining attorney or attorneys may continue to act (s 67).

F. Tribunal may revoke

The Tribunal may revoke an enduring power of attorney under s 75 (see below).

Management and Supervisory Measures

Various measures ensure that the attorney is properly accountable.

Record keeping and keeping property separate

An attorney responsible for money and property matters must keep accurate records and accounts of all transactions once the principal has become incapable of making decisions (s 47). The attorney must ensure that his or her money is kept separate from the principal's money unless the attorney and the principal have joint ownership (s 48).

The Tribunal's role

The Tribunal has a supervisory role over attorneys appointed under an enduring power. This includes requiring the attorney to produce records, directing the attorney on a particular matter, rule on interpreting the power and, if necessary, revoking the power in whole or in part in which case the Tribunal may appoint a guardian or manager(ss 75 and 79). Any interested person may apply to the Tribunal for these purposes (s 75(3)). The public trustee may be required to assist the Tribunal with property and money matters (s 83). The Tribunal can grant access to the principal to any interested person (ss 84(3)-(4)).

The Supreme Court's role

For more complex matters the Tribunal may refer a matter to the Supreme Court (s 76). The Supreme Court has powers to confirm (or otherwise) actions taken by an attorney in various circumstances (ss 80-83).

The public advocate's role

The public advocate may require an attorney to produce books and records (s 77). The public trustee may be required to assist the public advocate with property and money matters (s 83(3)). The public advocate is entitled to have access to the principal (s 84(2)).

Protection of attorney who has acted bona fide

An attorney is protected from liability if he or she has acted in accordance with Tribunal orders or advice (s 71). Also if an attorney has made decisions or entered into transactions under a power when the power of attorney was for some reason invalid but this was not known to the attorney, the actions by the attorney are legally effective (ss 72-3).

Contacts, Links and Resources

Commonwealth Government

Aged Care Standards and Accreditation Agency www.accreditation.org.au

Australian Fair Pay Commission (AFPC has been decommissioned; however, their documents can be accessed on the Fair Work Australia website www.fwa.gov.au)

Australian Human Rights Commission www.hreoc.gov.au/complaints_information/online_form/index.html (Online complaint form) www.hreoc.gov.au/disability_rights/index.html (Disability Rights home page)

Centrelink payments for people with disabilities and their carers

• Disability support pension www.centrelink.gov.au/internet/internet.nsf/payments/disability_support.htm
• Sickness Allowance www.centrelink.gov.au/internet/internet.nsf/payments/sickness.htm
• Carer Allowance (Adult) www.centrelink.gov.au/internet/internet.nsf/payments/carer_allow_adult.htm
• Carer Allowance (Child) www.centrelink.gov.au/internet/internet.nsf/payments/carer_allow_child.htm
• Carer Payment (Adult) www.centrelink.gov.au/internet/internet.nsf/payments/carer_adult.htm
• Carer Payment (Child) www.centrelink.gov.au/internet/internet.nsf/payments/carer_child.htm

Commonwealth Ombudsman www.ombudsman.gov.au

Commonwealth Rehabilitation Service (CRS) 1800 277 277

Commonwealth State and Territories Disability Agreements See the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) website www.facs.gov.au/internet/facsinternet.nsf/disabilities/policy-cstda.htm

Employment services for people with a disability (FAHCSIA website) www.facs.gov.au/internet/facsinternet.nsf/disabilities/services-nav.htm

Department of Families, Housing, Community Services and Indigenous Affairs www.fahcsia.gov.au

"GST and cars purchased by eligible people with disabilities" (advice from the Australian Taxation Office) www.ato.gov.au/businesses

Online reference for teens with an Intellectual Disability: Negotiating the Maze - transitioning from school to adult life. At present the site is still under construction and only a beta version is available: www.disabilitycoordinationoffice.com.au/content/view/894/371

National Health and Medical Research Council www.nhmrc.gov.au

Safety, Rehabilitation and Compensation Commission www.srcc.gov.au

ACT Government

ACT Board of Secondary Studies www.bsss.act.edu.au

ACT Children's Plan www.children.act.gov.au

ACT Department of Disability, Housing and Community Services - Disability ACT www.dhcs.act.gov.au/disability_act www.dhcs.act.gov.au/disability_act/enews (e-newsletter)

ACT Department of Education and Training - Student Support Section www.det.act.gov.au/school_education/disability_education

ACT Human Rights Commission www.hrc.act.gov.au

ACT Disability & Community Services Commissioner www.hrc.act.gov.au/disability

ACT Ombudsman www.ombudsman.act.gov.au

ACT Ministerial Advisory Council on Ageing www.dhcs.act.gov.au/wac/ageing/advisory_council_on_ageing

Canberra Connect www.canberraconnect.act.gov.au

Disabled parking information and application form "Mobility Difficulty Parking" www.rego.act.gov.au/parking/parkingmobility.htm

Guidance and Counselling Service (ACT Dept of Education and Training) www.det.act.gov.au/school_education/guidance_and_counselling_service

Information on Accessible Public Transport in the ACT www.tams.act.gov.au/move/public_transport/accessiblepublictransport

• Accessible Bus Travel (ACTION) www.action.act.gov.au/accessible_travel.html
• Wheelchair Taxis in the ACT www.tams.act.gov.au/move/public_transport/taxi_services_and_information/wheelchair

Online Directory of Disability Services www.canaccess.org.au

Community Organisations

Access City Hotline www.accesscity.org.au

ACT Disability, Aged And Carer Advocacy Service (ADACAS) www.adacas.org.au

ACT Inclusion Support Agency actpsc.com.au/inclusion-support

Advocacy For Inclusion www.advocacyforinclusion.org

Carers ACT www.carersact.asn.au

Carers Australia www.carersaustralia.com.au

Disability Discrimination Legal Servicewww.ourcanberra.com/Disability_Discrimination.html

Hartley Lifecare www.hartley.org.au

Healthcare Consumers' Association of the ACT www.hcca.org.au

Tandem www.tandem.org.au

Businesses

Financial counsellors may be useful in assisting a person with a disability to plan and manage their own finances (to find a financial counsellor, see Counselling and Advice).

Information for ACT and region businesses on engaging with people with disabilities www.blits.org.au

Post-School Education and Training - National Disability Coordination Officer (NDCO) - Northcott Disability Services www.northcott.com.au