Submission to ACT Law Reform Advisory Council Reform of guardianship arrangements for adult people

Powers of Attorney (Question 2)

One of the critical issues discussed at length during the recent review of ACT mental health legislation was how it would interact with powers of attorney, particularly in relation to mental health orders made by the ACAT and advanced agreements and directives made by individuals.

We submit that whatever reforms are suggested by LRAC, some consideration must go into the hierarchy of such orders and agreements, and based on the CRPD (and ALRC) Principles, wherever possible:

  • primacy must be given to the wishes and preferences of the person; and
  • a person should be supported to articulate those wishes and preferences.

As detailed below, some jurisdictions, such as British Columbia have introduced representative agreements, as an alternative to guardianship. Such agreements appear to be worthy of future consideration. However, as detailed below in relation to guardianship reform, safeguards and protections are vital considerations in any law reform and should be considered in relation to powers of attorney.