Protection for people with disability

JEREMY MOORE, MOORE LEGAL

The Guardianship and Administration Act 1993 (SA) (the Act) provides a mechanism for safeguards to be put in place for South Australians who have a mental incapacity and need protection.

Under the Act, SACAT can make Guardianship and Administration Orders for people with mental incapacity. Before 30 March, 2015, this role was undertaken by the Guardianship Board.

If SACAT is satisfied that the protected person has a mental incapacity, it can make a Guardianship Order and appoint the most suitable person(s) to be the Guardian(s).

If SACAT is satisfied the protected person needs an Administrator(s) to manage the protected person’s business and legal matters, it will make an Administration Order and appoint the most suitable person(s) to be the Administrator(s).

The Public Trustee is the default person SACAT can appoint as the Administrator if there is no other suitable person.

Notwithstanding that a protected person has a mental incapacity and is a subject to a Guardianship and/or an Administration Order each decision needs to be considered having regard to the Section 5 principles. It is the responsibility of the decision maker to know the protected person, gather the facts, understand their background, the way they have lived their lives and their wishes.

If the decision is not significant then it follows others should not interfere with the protected person’s wishes. I advocate for a “light touch approach” and never interfere with a person’s decision unless there is a good reason to do so. SECTION 5 PRINCIPLES OF THE ACT

Where a guardian appointed under this Act, an administrator, the Public Advocate, the Tribunal or any court or other person, body or authority makes any decision or order in relation to a person or a person’s estate pursuant to this Act or pursuant to powers conferred by or under this Acta. consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and b. the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and c. consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and d. the decision or order made must be the one that is the least restrictive of the person’s rights and personal autonomy as is consistent with his or her proper care and protection

The paramount principle is interpreted as requiring the decision maker to stand in the shoes of the protected person, to identify the core beliefs and values of that person, and to use these to decide what that person would have done but for their incapacity. The purpose of this principle is to ensure that, as much as possible, decisions made on behalf of a protected person are consistent with the beliefs and values they have held in the past.

This enables the protected person to keep living their life in a manner consistent with the way that they have lived. It allows the person to live the life they would have lived, but for the incapacity.

THE ROLE OF THE GUARDIANS, ADMINISTRATORS, PUBLIC ADVOCATE AND PUBLIC TRUSTEE

These people do not own a protected person’s life nor take control of it. They are charged with the responsibility of making sure that the protected person can live the life they would have lived but for incapacity. This notion is supported by the section 5 principles. These people cannot assume that they, and not the protected person, know best and do not make paternalistic value judgements about what is in the best interests of the protected person. Based on the evidence, these people ensure that they make the decision that the protected person would have made in the same or similar situation but for their incapacity. The basis for their decision is what the protected person would have valued and wanted to do.

WESTERN V MALE (2011) SASC 75

M was a 91-year-old widow. She had three children: a son and two daughters, one of whom had died. M made a Will in 2007 appointing her son and surviving daughter joint Executors. Apart from her jewellery and personal items, the residuary estate was to be split three ways: one for the son, one for the surviving daughter and the other for the deceased daughter’s children.

There was a conflict between the son and surviving daughter in August 2009, stemming from M’s house needing to be sold to cover nursing home fees of $350,000.

The son wanted to borrow $200,000 from M to pay his debts from the proposed sale proceeds of the house. The surviving daughter wanted someone independent to manage their mother’s affairs.

The house sold for $638,000 in September 2009.

M executed Enduring Powers of Attorney, Guardianship documents and a Will arranged by the son primarily for his benefit.

The son monopolized the attention of M, influenced documents that M signed, made appointments and attended those appointments with her and excluded M’s family and friends from visiting her at the nursing home.

Nyland J was satisfied that the son; • reinforced M’s belief she should never have moved to the nursing home; and planted the belief- the Guardianship

Board’s proceedings and the Court proceedings were adversarial and the surviving daughter’s attempt to take over M’s life.

Nyland J was satisfied, and in M’s interests, ordered that she continue living in the nursing home and have the support of an independent person, such as the Public Advocate, who would be able to negotiate with family members on M’s behalf. Nyland J was satisfied that because of a combination of her age and her physical and mental infirmity that M; • was unable wholly or partially to manage her affairs; and • had been subject to or was liable to be subject to undue influence of her estate.

Nyland J ordered that Public Trustee be appointed manager to take possession of and control and manage the whole of the estate of M with the powers and duties given and imposed by the Aged and Infirm Persons Property Act 1940.

CLARKE V THE PUBLIC ADVOCATE & OTHERS (2018) SASC 193

The plaintiff, BC, a 95 year-old man, resided in the Grande View, a nursing home, up to about 5 October, 2018.

SACAT made an order on the 27 September, 2018, under the Act that the plaintiff be a protected person under the guardianship of the Public Advocate limited to accommodation and lifestyle only.

The Public Advocate placed the plaintiff in the dementia unit of the Barossa Village Aged Care Facility (the Facility) on or about 5 of October, 2018.

The unit in which the plaintiff resided had a locked door which could only be opened by entering a code on a keypad or swiping a card over the electronic device. The plaintiff did not have access.

The Public Advocate did not obtain from SACAT authorisation, under section 32(1)(b) of the Act, to have the plaintiff detained in the Facility.

The plaintiff, with the support of his son, complained that the plaintiff was unlawfully detained.

Stanley J was satisfied that the plaintiff was being unlawfully detained and entitled to a remedy.

Stanley J Held 1. Section 29 of the Act does not confer power on the Guardian to decide where the protected person is to reside. 2. Section 32 of the Act is an exhausted code conferring power to decide, not only where and with whom a protected person resides, but the conditions of that residence, including the nature and degree of any restraint or detention required for the protection of the protected person or others. 3. The power to lawfully detain protected persons is found exhaustively in section 32(1)(b). 4. The plaintiff has been detained by reason of the acts of the Public

Advocate and the staff at the Facility. 5. The plaintiff has not been detained pursuant to the exercise of the power conferred by section 32(1)(b) of the

Act. 6. The plaintiff has been unlawfully detained and is entitled to the remedy provided by the writ of Habeus

Corpus. 7. It is appropriate to make an order pursuant to rule 198 of the Supreme

Court Civil Rules 2006 (SA) that the plaintiff’s detention be terminated.

These cases ended up in court because of the righteous indignation of a daughter and son who separately stood up to protect their parents’ interests. B November 2022 THE BULLETIN 25