Chapter 5 - The Development of Modern Guardianship and Administration
Contributed by Nick O’Neill with input from Carmelle Peisah and current to 30 April 2021.5.1 What this chapter is about
This chapter deals briefly with the development in England of the common law relating to the guardianship and the administration of the estates of people with decision-making disabilities, the introduction of that law into Australia and its further development here as a result of legislation and court decisions. The transition of the guardianship system from a Supreme Court based system to a tribunal based system at the end of the twentieth century is also dealt with. The development of the law was usually in arrears of the growing understanding of the causes of the different kinds of decision-making disability and their consequences. This is apparent in the language used at the different stages of the development of the law.5.2 Origins of modern guardianship and administration
5.2.1 The early history
Guardianship and administration has a long history in Anglo-Australian law. It was originally based on Roman law but developed slowly in England.(1) As Mc Clemens and Bennett pointed out, by the time the colony of New South Wales was established, the (English) law “of the mentally ill was to be found in the Royal Prerogative, in the statutes declaratory of it, in the common law writs and in the decisions of the Court of Chancery".(2) In medieval England responsibility for the mentally disordered lay first with the church and the lord of the manor. With the consolidation of power in the king in the thirteenth century, the enactment of the statute De Praerogativa Regis, which was seen as declaratory of the common law, and the development of the monarch as parens patriae, the king became the protector of the property and personal interests of his subjects.(3) Under the statute the king had the custody of the person and lands of those born with an intellectual disability during their lifetime but was responsible for maintaining the person and their household out of the income from the lands. The monarch had the same custody and responsibility for those with a mental illness, but only until they became well when their lands would be returned to them. Steadily this responsibility moved from the monarch to the Chancellor and evolved so that the Chancellor (or a Master of the Chancery court) would conduct an inquiry into whether or not the person was mentally incapable. If they were found to be incapable and need someone to manage their estate or person, then a “committee” of their estate or person or both would be appointed.(4) It was usual to appoint a family member or members as the committee, unless there was a reason not to do so.(5) The purpose of these appointments was for one or more people to have the legal authority either to look after the incapable person, and to be given an allowance to provide for them, or to manage the incapable person’s property and affairs but to be accountable to the Chancery court for doing so. As there was no social security system at the time, these arrangements ensured that wealthy but mentally incapable people were looked after. These arrangements were not available to mentally incapable people who could not afford them. They were entirely reliant on their families, the charity of others or the parish poor house. Too often the mentally ill found themselves confined in prisons with criminals and with other vagrants.(6)5.2.2 The system introduced into Australia
Initially in the colony of New South Wales responsibility for the mentally unfit lay with the Governor. Juries and other court-like processes were used before the governor exercised his discretion to appoint a committee for the person.(7) The responsibility then moved to the courts by virtue of the New South Wales Act 1823 (UK).(8) The Act provided for the establishment of the Supreme Courts of New South Wales and Tasmania (then Van Diemen’s Land). The Act also provided for jurisdiction to be given to the Courts through Letters Patent. The relevant Letters Patent for New South Wales are known as the Third Charter of Justice.(9) Under them the monarch, George IV, gave jurisdiction as follows, in terms we find both quaint and offensive today:XXVIII. And we do hereby authorise the Supreme Court to appoint guardians and keepers of infants and their estates, according to the order and course observed in England; and also guardians, and keepers of the persons and estates of natural fools, and of such as are or shall be deprived of their understanding or reason by act of God, so as to be unable to govern themselves and their estates; which We hereby authorise and empower the said court to inquire, hear, and determine, by inspection of the person, or such ways and means by which the truth may be best discovered and known.This jurisdiction, which eventually evolved into the modern guardianship and administration/financial management jurisdiction, was exercised by the Supreme Courts of first the colonies, and then, after federation, the States and Territories until the emergence of the tribunal-based guardianship systems first in Tasmania in 1963 and the other States and Territories in the 1980s and 1990s.
5.2.3 The effect of mental health reforms and legislation
The jurisdiction was first augmented by, and then confused and complicated by, the enactment of mental health legislation, perhaps the most significant in New South Wales being the Lunacy Act 1878 (NSW), which contained elaborate provisions for the care of the mentally ill and their estates.(10) The _Act established the office of the Master in Lunacy.(11) In 1972 the Master’s Office became the Protective Office. Mc Clemens and Bennett pointed out that; “in the form of its consolidation in the Lunacy Act of 1898, it laid down the pattern of lunacy law in New South Wales for the next eighty years".(12) The next step in the evolution of modern guardianship and administration in New South Wales was the enactment of the Protected Estates Act 1983 (NSW) and the creation of the position of Protective Commissioner and what became the Office of the Protective Commissioner under that Act when it came into force in 1985.(13) Between 1985 and 2009, the Protective Commissioner ceased to be a Master of the Supreme Court and the separation of the Court from direct supervision of the estates of incapable people was completed. In July 2009, the positions of Public Trustee and Protective Commissioner were effectively merged, together with their offices, into a statutory corporation and an agency of the New South Wales government called the NSW Trustee and Guardian but usually called the NSW Trustee.(14) In 1903 it was argued to a full court of the Supreme Court that the Lunacy Act 1878 (NSW) took away the lunacy jurisdiction given to the Court by the Third Charter of Justice and as the statute De Prerogativa Regis had been repealed insofar as it was in force in New South Wales and as the Act was a code, this left the Court with only the powers set out in the Act in its 1898 form. The full court rejected this argument and held that the jurisdiction given by the Third Charter of Justice remained unaffected and undiminished and that as De Prerogativa Regis was declaratory only of the common law, its repeal had no effect on the continuing operation of the common law introduced into New South Wales.(15) In other words the Court had broad powers under the royal prerogative which these days is called the “parens patriae” power or the inherent jurisdiction of the Court. By the late 1950s awareness of the different causes of mental incapacity was increasing. The Mental Health Act 1958 (NSW) replaced names, titles and descriptions such as lunacy, idiot, imbecile and insane asylum which were outmoded or stigmatising or just plain offensive and replaced them with terms such as mentally ill and mental hospital. The Master in Lunacy became the Master in the Protective Jurisdiction.(16) Most importantly the Act replaced the idea that mental hospitals were places of restraint and confinement with the idea that they were places of treatment and that those who were mentally ill required care, treatment and, sometimes, control. Nevertheless, the distinction between those who were mentally ill and those who had an intellectual disability, acquired brain injury or had dementia (then still called senility or senile dementia) and their needs for different kinds of care and treatment had not been made. Most of those who were not being cared for by their families were still housed in the old asylums renamed mental hospitals. Also concentration remained on managing the “mentally ill” person’s property and affairs rather than on guardianship.(17) However, the Act did provide for those who had "mental infirmity" arising from disease or age to have their property and affairs managed by others, by court order, when necessary.(18)5.3 The transition from mental health legislation to modern guardianship
5.3.1 Tasmania
The first move away from the Supreme Court based systems to tribunal based systems came in Tasmania with the enactment of the Mental Health Act 1963 (Tas). It established both a Guardianship Board, with power to regulate its own proceedings, and a Mental Health Review Tribunal. The Act also provided that those with a “mental disorder” described as mental illness or an intellectual disability (described in the Act as subnormality) could be received into guardianship by the Board itself or could have a private person as a guardian. Guardianship applications had to be founded on the recommendations of two doctors. Once an application was received by the Board, the named guardian could act as the plenary guardian of the person. The management of the property and affairs of people with a mental disorder remained with the Supreme Court.(19)5.3.2 South Australia
In 1975 a committee chaired by a Dr Dibden was established in South Australia to review that State’s then existing legislation.(20) In 1977 the South Australian parliament enacted the Mental Health Act 1976-1977 (SA) which established a Guardianship Board with greater powers than its Tasmanian counterpart. The Act applied not only to those with a mental illness or an intellectual disability but also to those with dementia and acquired brain injury. However, only the Board itself could take people into guardianship and only when it was satisfied, after a hearing, that the required conditions had been satisfied. Under the Act, the South Australian Guardianship Board was the first guardianship tribunal in Australia empowered to appoint administrators of the estates of those incapable of managing their estates whether or not they had been received into the guardianship of the Board. However the Board could make only plenary guardianship and administration orders.(21)5.3.3 Victoria
In November 1980 officers of the Health Commission of Victoria developed a position paper on the mental health legislation of that State.(22) The Minister for Health referred this paper to the Consultative Council on Review of Mental Health Legislation together with the job of reviewing the Mental Health Act 1959 (Vic) and advising on desirable changes to that Act. Issues relating to “mental retardation” were excluded from the Council’s terms of reference as the Minister set up another committee known as The Minister’s Committee Considering Rights and Protective Legislation for Intellectually Handicapped Persons (the Cocks Committee). The Consultative Council made its report in December 1981. It recommended the establishment of a Guardianship Board to take into its own guardianship, or place in the guardianship of others, mentally ill adults who were wholly or partially incapable of caring for themselves or of managing their own affairs. The Council recommended that guardianship orders be “limited to those areas where a person was unable to make reasonable judgements in all or some areas of life decision”, but noted that “full guardianship may be required in particular circumstances".(23) The Council also recommended that applications “for control of a person’s financial and business affairs, whether the person be a formal patient or not” (of a mental hospital) be made to the Guardianship Board.(24) Despite the limitation on its terms of reference, the Council noted that the South Australian Board was empowered to deal with those with “mental retardation” and supported the idea of applications being made to the proposed Guardianship Board in relation to them and to “geriatric patients".(25) The Cocks Committee made its report in December 1982. Its major recommendations were that a Guardianship Board be established with power to appoint limited and plenary guardians, not including itself, and estate managers for those developmentally disabled adults who were in need of guardianship or estate management. The Committee also recommended that the office of Public Advocate be established to act as guardian of last resort and as an advocate for developmentally delayed people.(26) The Committee proposed, in its report, a draft Guardianship Tribunal Bill to establish a tribunal with powers to appoint guardians and administrators, but only for adults with an intellectual disability. The legislation that followed these reports, the Guardianship and Administration Board Act 1985 (Vic) which came into force in 1987, applied to adults with a disability. “Disability” was defined to mean “intellectual impairment, mental illness, brain damage, physical disability or senility”. The Guardianship and Administration Board was established to operate as a fully independent tribunal empowered to appoint others, and not itself, as either limited or plenary guardians or plenary administrators for adults with a relevant disability who were unable, by reason of the disability, to make reasonable judgements in matters relating to their person, circumstances or estate and were in need of a guardian or administrator. The Act also established the office and functions of the Public Advocate. Because it had much more flexibility and discretion in relation to the orders it could make than its predecessors in Tasmania and South Australia, the Guardianship and Administration Board of Victoria can claim to be the first of the modern guardianship tribunals. It commenced operations in 1987. In effect Victoria went from the nineteenth century approach to guardianship and administration to modern guardianship in a single step in 1987.(27) The Victorian Guardianship legislation has been further amended with the new Guardianship and Administration Act 2019 (Vic) repealing the old Guardianship and Administration Act 1986 (Vic) on 1 March 2020. Besides being able to appoint guardians and/or administrators with the power to make decisions regarding a person’s personal and/or financial matters respectively, the new Victorian Guardianship legislation also enables VCAT to make supportive guardianship and/or supportive administration orders as well. (28) Further details on the new Guardianship and Administration Act 2019 (Vic)will be discussed in Chapters 6 and 8.5.3.4 Queensland
The Supreme Court based system continued in Queensland until 2000 when the Guardianship and Administration Act 2000 (Qld) was enacted and commenced. Nevertheless there was some transitional legislation from 1986 when the Intellectually Handicapped Citizens Act 1985 (Qld) commenced.(29) This Act established the Intellectually Handicapped Citizens Council of Queensland which, while it had some tribunal-like functions, had a number of other functions in relation to adult residents of Queensland with an intellectual disability. The Council had the power to hear and determine applications for approval of “special intervention”, a form of guardianship and support. Although the definition of “intellectually handicapped citizen” included more people than just those with an intellectual disability, the legislation was enacted primarily for the benefit of those with an intellectual disability as the second reading speech in relation to the bill for the Act shows.(30)5.3.5 New South Wales
By the early 1980s the judges were beginning to note problems with the Mental Health Act 1958 (NSW), but nevertheless stated the law in ways that were taken up in or continue to underpin the modern guardianship system. In 1981 Helsham CJ in Equity was willing to assume that a 27 year old woman born with Down’s Syndrome was mentally ill for the purpose of the Mental Health Act 1958 (NSW), but was not prepared to appoint a committee of either her estate or her person because there was no necessity to do so. The woman was being looked after in an institution for adults with an intellectual disability where she was receiving care and there were no problems relation to her maintenance, support and comfort. Nor were there any difficulties in to the management of her small income.(31) In 1983, Powell J held that neither Down’s Syndrome nor Fragile X (chromosome) Syndrome was a mental illness for the purposes of the Mental Health Act 1958 (NSW) but could be a mental infirmity arising from disease under the Act.(32) This approach to the Act was consistent with the approach taken by Myers J to the same provision in 1959 allowing him to appoint a committee of the estate of a person who had chronic schizophrenia. The man had a considerable fortune which he was completely unable to manage, but was able to look after himself quite satisfactorily.(33) In 1986 Powell J held that alcohol dependence and alcohol abuse were not mental illnesses and that anorexia nervosa was not a mental illness.(34) Earlier, in 1982, Powell J held that an elderly woman with vascular dementia was not mentally ill under the Mental Health Act 1958 (NSW) but by reason of mental infirmity arising from age was incapable of managing her affairs.(35) Using the same approach in 1986, Powell J found that a man (CCR) with Alzheimer’s disease was not mentally ill under the Mental Health Act 1958 (NSW) and discharged him from the mental hospital. Powell J’s views were controversial in the eyes of psychiatrists responsible for treating those people with dementia who also had psychotic symptoms. In his 1999 book, Dr Peter Shea stated that:[I]n deciding that CCR was not a mentally ill person, Powell J made a significant distinction between demented people who were suffering simply from cognitive changes associated with dementia and demented patients with certain additional symptoms. He noted that patients with dementia could sometimes suffer hallucinations, delusions and other psychotic symptomatology as well as their symptoms of cognitive disturbance. He said that when the psychotic symptoms were present, the demented patient could be mentally ill for the purposes of the Mental Health Act. This distinction, while legally rational, made no psychiatric sense whatsoever. Patients with cognitive changes associated with dementia can and often do experience hallucinations, delusions and other psychotic symptomatology as well as the cognitive symptoms. Sometimes the hallucinations and delusions are transitory. Sometimes they persist for some time…. Whatever causes of the cognitive disturbance is also responsible for the delusions and hallucinations. If the delusions and hallucinations are not transitory but recurrent then a demented person may slip in and out of the definition of a “mentally ill person” several times a day.(36)In 1984 however, Powell J, resorted to the use of the inherent power of the Supreme Court which he said “derived from the (Third) Charter of Justice (1823)” to resolve the case of a 28 year old woman with a severe intellectual disability and appointed the Protective Commissioner as the committee of both her person and her estate.(37) In that case he also noted that he had drawn attention to what he saw were the inadequacies of the law relating to the protection of people with an intellectual disability and of the powers of the Court to give protection to them.(38) He also noted the concern of others about the serious inadequacies of the laws relating to the guardianship of people with an intellectual disability and went on to suggest that the inherent or parens patriae power of the Court did not apply to those with a moderate, mild or borderline intellectual disability.(39) Nevertheless, he had relied on this jurisdiction in 1983 to appoint an interim receiver and manager of the property and affairs of a woman who had suffered a stroke but whom Powell J found not to be “mentally infirm” under the provisions of the Mental Health Act 1958 (NSW). He relied on this jurisdiction again in late 1983 to appoint the Protective Commissioner to undertake the care and management of the property in New South Wales of a 12 year old boy, by then living in Victoria, with massive acquired brain damage, quadriplegia, epilepsy, blindness and virtually no intellectual or cognitive functioning as a result of a motor vehicle accident in New South Wales.(40) The problems caused by the definition of mental illness and mental infirmity in the mental health legislation in New South Wales were largely overcome by the enactment of section 13 of the Protected Estates Act 1983 (NSW), which did not come into force until 5 August 1985. The section provided that if the Supreme Court was satisfied that a person was incapable of managing their affairs, the Court could make a declaration to that effect and order that the person’s estate would be subject to management under the Act. The Act was enacted at a time of growing awareness of the differences between and the differing needs of people with a mental illness and those with an intellectual disability or other forms of decision-making disability. Steps were also taken to bring down the costs of obtaining a management order in the Supreme Court. As part of the evolution of the role of the Protective Commissioner, the Act gave the holder of that office substantial powers to manage the property and affairs of those whose estates were placed under management. However the Supreme Court remained the ultimate authority.(41) Concurrent with these developments in the Supreme Court and in the legislation, the Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled, chaired by David Richmond, carried out its work and, in March 1983, reported to the Minister for Health. The Richmond Report, as it soon became known, recommended first that services to people with a psychiatric condition or an intellectual disability “be delivered primarily on the basis of a system of integrated community based networks, backed up by specialist hospital or other services as required”. There were to be two prime operational objectives, to fund or provide services which maintained clients in their normal community environment and to reduce progressively the size and number of mental hospitals by decentralising the services they provided. Services for those with an intellectual disability were to be separated from mental health services, funded separately and delivered under separate management as community based services which included the development of small community based residential units to rehouse residents from the existing institutions.(42) Although the New South Wales system remained Supreme Court based, one small tribunal, the Intellectually Handicapped Persons Review Tribunal was established under the 1967 amendments to the Child Welfare Act 1939 (NSW). The Tribunal operated in the context of a set of arrangements that could be applied to people with an intellectual disability as different from those with a mental illness. The new Part IX of the Child Welfare Act 1939 (NSW) operated so that a child or young person who had an intellectual disability who did not need continuous treatment or attention in a hospital but who needed care protection or supervision in their own interests or in the interests of others could be placed under and remain under the guardianship of the Minister, for the whole of their lives if necessary, to ensure that they received the services and support that they needed. The Tribunal had the role of reviewing these guardianship arrangements every two years and ordering their continuation where appropriate.(43) While the judges of the Supreme Court have been concerned about the apparent limits on their jurisdiction imposed, usually unintentionally, by legislation, they have usually overcome the problems raised when it has been necessary to do so in order to arrive at the just and sensible result in the best interests of the incapable person. This has been seen in the cases already referred to. However the judges are clear that the Court’s substantial and broad inherent powers arose from the fact that the Supreme Court has been given “all jurisdiction which may be necessary for the administration of justice in New South Wales".(44) This grant of jurisdiction is seen as including the prerogative jurisdiction that developed in the common law often called the parens patriae jurisdiction. It arms the Court with jurisdiction to meet new situations that arise that need to be resolved by court intervention and decision-making. In relation to medical treatment, this jurisdiction is seen as protective in nature.(45)
5.3.6 Northern Territory
Despite the enactment of the first two of the modern guardianship statutes in Australia, Guardianship and Administration Board Act 1985 (Vic) and the Disability Services and Guardianship Act 1987 (NSW) in Victoria and New South Wales respectively, the Northern Territory enacted a form of transitional legislation in 1988, namely the Adult Guardianship Act 1988 (NT).(46) The immediate cause of the legislation was the concern of magistrates in Alice Springs about the lack of facilities for people with an intellectual disability and behavioural problems which led to them being brought before the courts.(47) While it could be applied to a wider range of people with decision-making disabilities, it was drafted with the needs of people with intellectual disabilities in mind. The _Act provided for the appointment of guardians with either plenary or limited powers.(48) These appointments were made by the magistrates of the Local Court after receiving reports and recommendations from a Guardianship Panel appointed separately each time there was an application for guardianship. Under the Act, the magistrates could appoint either a private person as guardian or the Public Guardian who was the relevant Minister. The Minister’s guardianship role was carried out by designated staff of the Department of Community Services. The guardian of a person could also be appointed as administrator of their estate. The Adult Guardianship Act 1988 (NT) was the last of the transitional stage legislation to be enacted. It left the appointment of administrators of most substantial estates in the hands of the Supreme Court under the Aged and Infirm Persons’ Property Act 1979 (NT). As from 24 July 2016, the Northern Territory has had a guardianship system similar to that of the States and the Australian Capital Territory.(49) The Northern Territory Civil and Administrative Tribunal (NTCAT) now is the body empowered to appoint guardians for adults who have impaired decision-making capacity. It may appoint guardians to make decisions for the person under their guardianship in relation to both personal and financial matters. The _Advance Personal Planning Amendment Act 2016 (NT) repealed the Aged and Infirm Persons Act (NT) as part of the process of making NTCAT the tribunal responsible for appointing guardians who could be empowered to handle the financial affairs adults who had impaired decision-making capacity for those matters.(50) The Guardianship of Adults Act 2016 (NT) also established the office of the Public Guardian. The matters are taken up in more detail, as appropriate, in chapters 6- 10 and 12-14.5.3.7 Australian States and Territories
As from the end of July 2016, the primary exercisers of guardianship jurisdiction in Australia were the Civil and Administrative Tribunals of each of the States, except Tasmania, and of both Territories. In Western Australia the relevant tribunal is called the State Administrative Tribunal.5.4 The modern system of guardianship and administration emerges
5.4.1 The evolution of modern guardianship and administration
Modern guardianship and administration evolved over the centuries, but it took a great leap forward in Australia between 1986 and 2000 when all the States and Territories enacted new legislation which was designed to respond much more effectively to the needs of people with decision-making disabilities arising from causes other than mental illness. The new legislation reflected the growing understanding among policy makers and the public generally of the different causes of decision-making disabilities and the differing needs of the people who had these differently based disabilities. In addition there was a greater awareness of the rights of people with disabilities of all kinds to live as normal a life as possible, and in the community rather than in institutions.5.4.2 The components of modern guardianship
There are a number of components of modern guardianship. The legislation of all the Australian jurisdictions contains most of these components, except for the Northern Territory. The first component is a tribunal able to develop its own procedures to deal with the particular kinds of matters it is required to hear and determine and provide procedural fairness. Such a tribunal has to be accessible to the public so that people do not have to retain lawyers to use it. It has to be flexible about the evidence it receives, so that people do not have to obtain expensive reports from specialists just for its hearings, when other evidence that is just as credible and probative of the issues that have to be proved to the tribunal is available. The tribunal should have the flexibility to craft the orders it can make to meet the particular needs of the person before it who is in need of an order. Consequently, it should be able to make both guardianship and administration orders that are either limited or plenary depending on what is needed in a particular case. These orders should be reviewable on a regular basis. It does not matter if the Supreme Court in the particular State or Territory retains its jurisdiction in relation to guardianship and administration as most people will use the cheaper and more accessible tribunal, but be able to use the Court when the circumstances of the case make that appropriate. The tribunal should not charge fees for bringing applications to it as this can result in applications that should be made to the tribunal not being brought to it.(51) As from 1 January 2014, the jurisdiction that comprises modern guardianship will be exercised in NSW by the NSW Civil and Administrative Tribunal (NCAT). It is already being exercised in Victoria by the Victorian Civil and Administrative Tribunal (VCAT), in Queensland by the Queensland Civil and Administrative Tribunal (QCAT), in Western Australia by its State Administrative Tribunal (WASAT) and in the ACT by the ACT Civil and Administrative Tribunal (ACAT). However, in South Australia the jurisdiction is exercised by that State’s Guardianship Board, in Tasmania by that State’s Guardianship and Administration Board, and in the Northern Territory by the Magistrates Court. Another fundamental component of modern guardianship is the Public Advocate or Public Guardian that exists in each State and the two Territories.(52) It is an independent statutory appointee to act as guardian as necessary, but also usually has other functions to promote the interests of people with disabilities. The Public Advocate or Guardian should be separate from another essential element of the system, namely the Public Trustee, State Trustee or NSW Trustee, another independent statutory appointee authorised to manage the estates of those incapable of managing their own property and affairs and to supervise the management by private persons of the estate of a person subject to a tribunal order. The legislation must recognise, and provide for, the different kinds of disabilities that give rise to decision-making disabilities, set out the principles upon which the system is based, including the principles of the least restrictive alternative and of orders made and continued only when the need to do so is shown.5.4.3 Modern guardianship and administration State by State
5.4.3.1 Victoria – 1987
As already noted, the Guardianship and Administration Board Act 1985 (Vic) which came into force in 1987, established the first of the modern, independent guardianship tribunals in Australia.(53) It also created the position of Public Advocate, an independent, statutory appointee empowered not only to act as a guardian of adults with a disability, but also to undertake systemic advocacy and other functions to promote the interests of adults with decision-making disabilities. Victoria’s Guardianship and Administration Board was abolished in 1998 and its jurisdiction taken into the Victorian Civil and Administrative Tribunal (VCAT) which came into existence 1 July 1998.(54) On 1 March 2020, the new Guardianship and Administration Act 2019 (Vic)repealed and replaced the old Guardianship and Administration Act 1986 (Vic). The new Victorian Guardianship legislation now examines the “will and preferences” (55) of the represented person and aims to support decision-making for those with disabilities in line with the United Nations Convention on the Rights of Persons with Disabilities to enable them to “enjoy legal capacity on an equal basis with others in all aspects of life.” (56)(57) The general decision-making principles to be followed are set out in the Act. The Act requires that a person making a decision for a person in relation to whom a guardianship or administration order has been made, must have regard to the following principles:- the person should give all practicable and appropriate effect to the will and preferences, if known, of the person about whom the guardianship or administration order has been made;
- if the person who is making the decision is not able to determine the will and preferences of the person they are making the decision for, they should give effect as far as practicable in the circumstances to what they believe the will and preferences of the person for whom they are making the decision are likely to be, based on all the information available, including information obtained by consulting relatives, close friends and carers of the person for whom they are making the decision;
- if the person who is making the decision is not able to determine the likely will and preferences of the person for whom they are making the decision, they should act in a manner which promotes the personal and social wellbeing of the person for whom they are making the decision;
- if the person for whom decisions are being made has a companion animal, the person making the decisions should act in a manner that recognises the importance of the companion animal to the person they are making decisions for and any benefits that that person obtains from the companion animal;
- the will and preferences of the person for whom decisions are being made should only be overridden if it is necessary to do so to prevent serious harm to that person. (58)
5.4.3.2 New South Wales – 1989
New South Wales was the next to move to modern guardianship with the enactment of the Disability Services and Guardianship Act 1987 (NSW) which came into force in August 1989. It came after the Richmond Report, Powell J’s series of judgments and expressions of concern about terms used in the Mental Health Act 1958 (NSW) and the enactment of the Protected Estates Act 1983 (NSW). It was said to be largely the work of an interdepartmental working party which had representatives of the Departments of Health, the Attorney General, Youth and Community Services and the Premier as well as the Protective Commissioner and representatives of the New South Wales Council for Intellectual Disability and the Mental Health Co-ordinating Council. Consultations on the drafting of the bill were conducted with the Disability Council of New South Wales and with non-government agencies representing the interests of a wide range of people with decision-making disabilities.(61) The Victorian legislation was an influential model in the development of the New South Wales Act. The New South Wales Council for Intellectual Disability and other organisations and individuals supporting the rights of people with an intellectual disability to lead as normal life as possible in the community played a significant role, not only in shaping the legislation, but also in ensuring its enactment by the Unsworth Labor Government in 1987 and its being brought into force by the Greiner Coalition Government in 1989. The Act was renamed the Guardianship Act in 1993.(62) The Act established the Guardianship Tribunal (then known as the Guardianship Board) in New South Wales as well as the office of Public Guardian.(63) The position of Public Guardian was held by the Protective Commissioner, but the Office of the Public Guardian and the Office of the Protective Commissioner were run separately with the Director and staff of the Office the Public Guardian carrying out most of the functions of the Public Guardian under delegation. However, as already noted, in 2009 the Protective Commissioner (and Public Trustee) were replaced by a statutory corporation, the NSW Trustee and Guardian. Although the person holding the office of Public Guardian works within that statutory corporation, the position of Public Guardian remains established under the Guardianship Act 1987 (NSW).(64) Initially the Guardianship Tribunal in New South Wales could not deal with an application for a financial management order in relation to a person unless it had also received an application for a guardianship order in relation to that person. The need to remove that limitation soon became apparent. Now the Tribunal may receive either or both applications in relation to a person 16 years or above.(65) It may make either limited or plenary guardianship orders, and since 2009, has had the power to make plenary financial management orders and an unencumbered discretion to exclude a specified part of a person's estate from management.(66) On 1 January 2014 when the Civil and Administrative Tribunal of New South Wales (NCAT) came into existence, the Guardianship Tribunal became the Guardianship Division of NCAT.(67)5.4.3.3 Northern Territory – 1988 and 2016
Northern Territory followed in 1988 with the Adult Guardianship Act 1988 (NT) which, as already noted, was transitional legislation rather than a modern guardianship Act. A number of reports were commissioned all of which recommended modernising the legislation. After earlier attempts to modernise the legislation, this was achieved in 2016 with the enactment of the Guardianship of Adults Act 2016 (NT), the amendment of the Advance Personal Planning Act (NT) and the repeal of the Aged and Infirm Persons Act (NT) (1979). These matters are referred to briefly at 5.3.6 above and in more detail, as appropriate, in chapters 6-10 and 12-14.5.4.3.4 Western Australia – 1992
In Western Australia in 1984 a committee reviewing that State’s mental health legislation recommended that a “guardianship board should be established with power to appoint limited and plenary guardians and estate administrators for incapable persons who were in need of guardianship or estate administration”. The committee also recommended the creation of the office of Public Guardian with power to act as “guardian of last resort and an advocate for incapable persons".(68) Again the Victorian legislation had a significant influence in the development of the Guardianship and Administration Act 1990 (WA) as did those organisations and individuals representing the interests of people with a disability, including Errol Cocks the chair of the Victorian Minister’s Committee Considering Rights and Protective Legislation for Intellectually Handicapped Persons, who was a Western Australian. An indicator of this influence is that the Guardianship and Administration Act 1990 (WA) made it clear that the Guardianship Board established by it could make not only plenary but also limited administration orders.(69) The Guardianship and Administration Board of Western Australia commenced operations in October 1992. It was abolished and its jurisdiction taken over by the State Administrative Tribunal of Western Australia (WASAT) when that tribunal came into existence 1 January 2005.(70) In enacting the Guardianship and Administration Act 1990 (WA), Western Australia moved from a Supreme Court based system to a tribunal based system for dealing with guardianship and administration matters. The 2004 changes to the nature of the tribunal dealing with this jurisdiction made it clear that the inherent jurisdiction of the Supreme Court of Western Australia was not affected.(71)5.4.3.5 Australian Capital Territory – 1992
In 1982 Lockhart J sitting in the Supreme Court of the ACT, relied upon the Lunacy Act 1898 (NSW) in its application to the ACT to appoint managers for a man who had suffered extensive brain injuries in a motor vehicle accident. He did so by treating the man’s acquired brain damage as “mental infirmity arising from disease” under the NSW Act.(72) After reviewing the state of the relevant law in the ACT, Lockhart J stated;Plainly, the legislation relating to the management of the property and affairs of mentally infirm persons in the Australian Capital Territory is in need of urgent reform.(73)In August 1988 the Commonwealth Attorney-General, Lionel Bowen gave the Australian Law reform Commission a reference to consider new guardianship and administration legislation for the Australian Capital Territory. The Commission made its report in August 1988 recommending the establishment of a specialist Guardianship and Management of Property Tribunal together with a Public Advocate having a role similar to the Public Advocate in Victoria.(74) Annexed to the Commission’s report was a draft Guardianship and Management of Property Bill which provided for the Public Advocate as well as the Public Trustee, trustee companies and natural persons to be able to be appointed as managers (administrators) by the Tribunal.(75) The report described the state of the relevant law in the Australian Capital Territory as at 31 August 1989 and referred to it as being from a bygone age.(76) The Guardianship and Management of Property Act 1991 (ACT), which came into force 7 January 1992, is based heavily on the draft Bill in the report. The Act established a specialist Guardianship and Management of Property Tribunal but that tribunal was located in the Magistrates Court with the Territory’s Chief Magistrate as its President. Separate legislation operated to have the effect of removing the guardianship and administration of property from the Supreme Court and giving it to the Guardianship and Management of Property Tribunal.(77) The Community Advocate Act 1991 (ACT) established the statutory office of Community Advocate to act as a guardian and to carry out a range of other functions to promote the interests of people with disabilities.(78) The role of the Community Advocate was taken over by the Public Advocate established under the Public Advocate Act 2005 (ACT) which commenced in March 2006.(79) The influence of the Victorian legislation is apparent from the Australian Law Reform Commission’s report and from the second reading speech of the Minister for introducing the legislation.(80) Commencing in February 2009, the ACT Civil and Administrative Tribunal (ACAT) took over the jurisdiction previously exercised by the Guardianship and Management of Property Tribunal.
5.4.3.6 South Australia – 1995
In 1988 a Review of the Guardianship Board and the Mental Health Review Tribunal was established in South Australia. The Review reported in 1989 noting that under the system then existing in South Australia the role of families and carers was inappropriately restricted and undervalued and that there was conflict for the Guardianship Board in its roles as investigator, formal decision-maker and guardian.(81) In 1990 a review was undertaken of the consent to medical and dental procedures which had been inserted into the Mental Health Act in 1985. That review reflected some of the concerns of the earlier review and supported its philosophical directions, in particular the involvement of the family in decision-making about medical and dental treatments.(82) Both those reports were released and extensive consultation in relation to them with a wide group of consumers of the affected services, carers, government departments, non-government organisations and professional groups took place before the new legislation enacted as the Guardianship and Administration Act 1993 (SA) was introduced to the House of Assembly in 1992 and the Legislative Council in 1993. In both houses of the South Australian parliament it was noted that the thrust of the legislation was consistent with the emerging national model of guardianship which had already been adopted in New South Wales, Western Australia and the Australian Capital Territory and was under consideration in Tasmania and Queensland.(83) The Guardianship and Administration Act 1993 (SA) established a new Guardianship Board without the role of guardian that its predecessor had. Without much heralding of it, the Act introduced the concept of enduring guardianship by which an adult may appoint their own guardian to make personal decisions for them, including medical treatment decisions, when they lost the capacity to make their own decisions.(84) As we shall see, enduring guardianship has been legislated for in most of the other States and is an important way in which people can plan ahead and decide for themselves who they want to make decisions for them when they are no longer able to.(85) Unlike the guardianship tribunals in the other States, the South Australian Guardianship Board was empowered, under the Mental Health Act 1993 (SA), to review detention orders made under that Act and to hear and determine appeals against orders, made under that Act by doctors, for the detention of people in mental hospitals for treatment.(86) The Board was empowered to appoint “natural persons” or the Public Advocate as guardian.(87) The Act created the statutory office of Public Advocate.(88) Like its counterpart in Western Australia, the South Australian Guardianship Board was empowered to make both limited and full (plenary) administration orders.(89) Although assented to in May 1993, the Guardianship and Administration Act 1993 (SA) did not come into force until 6 March 1995. With effect from 29 March 2015 the South Australian Civil and Administrative Tribunal (SACAT) took over the jurisdiction of the South Australian Guardianship Board which ceased to exist.(90)5.4.3.7 Tasmania – 1997
The Guardianship and Administration Act 1995 (Tas) completed the transition of Tasmania’s guardianship system from the Supreme Court based to a tribunal based system. It was enacted at the end of a long process which started with a review of the Mental Health Act 1963 (Tas) by the then existing Guardianship Board and the Public Trust Office. In 1989 the review recommended changes to modernise the system following the Victorian model. Largely through the efforts of the Chairman of the Guardianship Board, John Blackwood, the legislation was drafted to establish a Guardianship and Administration Board empowered to appoint guardians, including the Public Guardian, under limited or full (plenary) guardianship orders for adults with decision-making disabilities who needed such an order.(91) The Board also makes administration orders.(92) The Guardianship and Administration Act 1995 (Tas) created the office of Public Guardian with guardianship and other functions similar to the Public Advocates of Victoria and South Australia.(93) The Act came into force 1 September 1997.5.4.3.8 Queensland – 2000
Queensland was the last jurisdiction in Australia to enact modern guardianship legislation, and it did the job thoroughly. The Queensland Law Reform Commission was given a reference in September 1990 to review the existing Queensland laws relating to people with disabilities. The Commission had the benefit of the experience of the guardianship bodies in the other States and the Australian Capital Territory. It reported in June 1996 with very detailed proposals and a draft Assisted and Substituted Decision Making Bill.(94) The Commission’s report led to the enactment of the _Powers of Attorney Act 1998 (Qld) which, in addition to providing for enduring powers of attorney and advance health directives, also established the office of Adult Guardian with powers wider than those of the Public Advocates of Victoria and South Australia.(95) The provisions relating to the Adult Guardian were relocated to the Guardianship and Administration Act 2000 (Qld) when it came into force 1 July 2000.(96) That Act established the Guardianship and Administration Tribunal empowered to appoint guardians, including the Adult Guardian, and administrators. In 2009, the Guardianship and Administrative Tribunal was incorporated into the Queensland Civil and Administrative Tribunal (QCAT). 5.5 Matters not dealt with in this chapter This chapter has traced the development of the main aspects of modern guardianship and administration in Australia. In the late twentieth century other matters seen as part of, or related to modern guardianship, were developed. These included enduring powers of attorney, enduring guardianship, substitute decision-making for medical and dental consent and end of life decision-making. These matters are taken up in other chapters of this book. As outlined in Chapter 1, in 2006 the General Assembly of the United Nations adopted the text of the Convention on the Rights of Persons with Disabilities. The Convention was opened for ratification in 2007. Upon its ratification by a twentieth country in May 2008 it came into force as an international treaty. It came into force for Australia 16 August 2008 after the Australian Government ratified it. The Optional Protocol for the Convention came into force for Australia. The Optional Protocol of the Convention was ratified by Australia 30 July 2009. Article 12 of the Convention provides for equal recognition before the law of persons with disabilities with persons without disabilities in the following terms:- States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
- States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
- States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
- States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
- Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.
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