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

SDM Trials (Question 9)

The Commission is aware of the recent ADACAS supported decision making trial, and has been consulted by the Community Service Directorate about another trial due to commence shortly. Our feedback has been informed by research of other trials interstate and overseas.

Nonetheless, Carney suggests Australia has been slow to legislate supported-decision making, compared to Canada or Sweden.[90] Blanck and Martinis note that in the United States, Texas and Virginia have passed laws authorising and studying the use of supported decision-making. MDAC also cites new laws introduced in the Czech Republic, Ireland and Latvia.[91]  As Carney puts it:

‘Australian pilot studies of difference models of assistance are few in number, small in scale, and unable to afford a rigorous evaluation design….they also concentrate on assessing the more extensive forms of assistance to the neglect of the more routine or ordinary situations where assistance may be needed.’[92]

In light of the Victorian Law Reform Commission’s proposals for reform to that State’s guardianship laws, the Victorian Government introduced legislation in 2014 to facilitate supported decision making, although Carney submits that these reforms ‘fell short’ of the VLRC’s proposals and were poorly drafted.[93] Carney does however welcome that the Bill would have obliged appointees to do a range of things, and while arguably falling short of the CRPD standard, it would have given substance to international suggestions that reformed guardianship law can enshrine “person-centred” principles. The law would have required appointees to give:

  • practicable and appropriate support to enable that person to participate in decisions affecting the person as much as possible in the circumstances ;
  • give all practicable and appropriate effect to the represented person’s wishes ;
  • take any steps that are reasonably available to encourage the represented person to participate in decision making, even though the represented person does not have decision making capacity (cl. 7(b)(ii)); and
  • act in a way that promotes the personal and social wellbeing of the represented person.

The Bill also elaborated promotion of personal and social wellbeing as including recognising a person’s “inherent dignity”, having regard to his or her “existing supportive relationships, religion, values and cultural and linguistic environment” and respect for confidential information. [94]

Nonetheless, Carney cautions against the very narrowness of the gap between substitute and supported decision-making options, which risks confusing public understanding. He is also critical of the Bill’s adoption of an expedited avenue for the appointment of a parent as guardian of an adult, which does indeed appear to be the test of capacity rejected by the CRPD, with an unclear justification. In contrast, Carney submits the criteria proposed by VLRC Report was a ‘more sophisticated’ suite of protections, requiring one of the following to be shown:

(a) a need for a decision to be made ‘now or reasonably soon’, which decision ‘would not be able to be made’ without an appointment, or the person’s ‘personal and social wellbeing can best be promoted’ by such an appointment; or

(b) that there are ‘ongoing decisions to be made in relation to the person’s lifestyle or finances’, and/or his or her ‘personal and social wellbeing can best be promoted’

(c) decision-making ‘is so significantly impaired and enduring that they are unlikely at any time in the future to make their own decisions, even with significant support’ and people are and have been making similar decisions for a ‘significant period of time’, and there is a ‘broad consensus among carers and others’ that the role is appropriate, and that if able to communicate his or her wishes, the person would not object.

Apparently contrary to the presumption of capacity detailed above, the original Bill would also have encourage VCAT to make an order where notified parties did not object or failed to respond, absent other factors, such as the quality of the documentation. Carney contrasts this to the VLRC proposed expanded pre-hearing process which could include mediation, planning, investigation and other options.

The legislation lapsed at the subsequent State election in 2014.

The Victorian Parliament has passed amendments to its Powers of Attorney Act, to action the VLRC’s recommendation that, wherever feasible, the appointment of supports be made by the person. Carney submits that a welcome step in this legislation is that the capacity standard for appointment of a supporter is lower than that for executing a valid enduring power of attorney, being that:

  • the person understands the enabling or facilitating role of a supporter;
  • that the person chooses the supporter;
  • that decision remains that of the person;
  • and the person retains control over the beginning and ending of the relationship. [95]