When the health or capacity of a loved one declines or a loved one is born with a disability (described herein as ‘vulnerable victim’ or ‘vulnerable person’), it is often assumed that the next of kin, family (spouse, partner, de-facto, children/child, sibling, grandchildren) or trusted support persons/s can, legally, step in and provide the vulnerable person/s with assistance and to legally act in their best interests, regarding their personal, medical and financial affairs.
This is NOT the reality in Australia. The reality is there is fierce competition to take over a vulnerable person’s life.
Their decision-making rights both personal and financial.
Under the colour of law and the legal bypassing of due process, cloaked in secrecy, vulnerable people and/or their loved ones (even those with capacity) are losing their decision-making rights by State/Territory Governments, institutions, organisations, and other vested interest groups.
What is claimed to be a protective regime of last resort and duty of families, Guardianship/Public Administration is a multi-billion-dollar business, and vulnerable persons and families are being steered in one direction that is profitable for institutions, State/Territory, and Federal Governments. These groups, and even strangers, are taking over the personal and financial decision-making of vulnerable Australians via Tribunals, bedside hearings, and/or new Enduring Powers of Attorney (EPOA) signed up in vulnerable settings.
Many tactics, legal or illegal, are being employed to gain control. It is an aggressive unregulated and unmonitored arena that is generating billions annually in assets acquisitions and cost savings. This is no accident nor neglect on the part of lawmakers. Evidence at hand confirms the executive arm of the Government, via legislation, funding, and collusive acceptance, are the creators of this abuse. Vague discretionary capacity laws, substandard capacity testing, unqualified professionals assessing capacity, loopholes in legislation, the overriding and/or creation of Powers of Attorney and bedside hearings plus the excessive discretionary powers awarded to Tribunals by State/Territory governments, that ignore evidence and court rules, allow these abuses to occur. Decisions, which not surprisingly, often favour the State/Territory and not the best interests of the vulnerable person.
It’s a predatory entrapment process, not a protective arena. It is racketeering!
Decades of evidence confirm institutions and government-funded organisations and government-funded employees, such as social workers and hospital medical staff, are all working in sync to seize control or encourage vulnerable persons into the Guardianship arena. Once in the system, the capture of a vulnerable person is easy. A serious imbalance of power often exists between the individual and the institution or collusive groups, which are often successful in seizing control over the victim and loved ones. Often victims do not understand due process nor medical terminology and are frightened by the fact of appearing in front of a Tribunal.
Now imagine how stressful it is for a vulnerable person or an individual in which English is a second (if that) language. Elder and vulnerable abuse reporting is a major concern and focal point of our organisation as, presently, many innocent vulnerable victims are unaware that the State/Territory Government's hidden solution to this crime is Public Guardianship and Administration. Elder abuse investigation is non-existent and criminal charges are rarely laid on organisations or institutions, or anyone for that matter, as this abuse is being practically treated as ‘civil’, which ultimately benefits the State/Territory.
The Public is generally unaware that under Guardianship, every facet of your life can be controlled: your personal decisions, your friends, where you live, what personal items you can keep (if any), your medical choices, your money, your pension, your superannuation, your assets even when and how to die and how you are buried! Vulnerable people, often are being forcibly institutionalised, their estates seized and liquidated, and, in some cases, euthanised against their own expressed wishes. It is sinister and brutal and a clear contravention of the Human Rights Charter let alone the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
The World Health Organisation definition of Elder Abuse does not exclude any abusers; however Australian Governments do.
This is SOCIETAL ABUSE neglect and exploitation of people with disabilities. Even those without a disability! Incredulous as it sounds, this abuse is happening in Australia. But how?
State/Territory Governments under the various statutes have legally created three main institutions:
Civil and Administrative Tribunals
Public Guardians; and
Public Trustees.
These groups are unmonitored and unaccountable and act accordingly. Also, Federal and State/ Territory Governments’ funding to other organisations and institutions, such as hospital staff, assist in encouraging this entrapment and abuse to occur. Evidence confirms the close working arrangements of these various so-called independent groups, influencing legislation and working in sync to overpower vulnerable people.
We have evidence of groups such as Public Guardians and Public Trustees abusing and neglecting vulnerable people, depleting their estates, euthanising them against their expressed directives, forcibly institutionalising them and isolating them from trusted care. This imbalance of power is too great, it is abhorrent and a serious human rights crime.
During the 1990s, the organisation ‘Citizens of Protected Persons Association’ (COPPA) was formed by Ms. Paddy Costa who fought tirelessly to raise awareness and support victims nationwide. COPPA documented extensive abuses as far back as the 1980s. AASGAA, fortunately, has COPPA’s documents confirming these abuses even back into the 1990s. Inquiries and committees over the years, as far back as the 80s, and that Guardianship abuses are well known at all State/Territory and Federal levels of government. The Violence, Abuse, and Neglect Committee in 2015 received a plethora of submissions, so much so that the committee members were forced to address the seriousness of this crime. No serious changes have occurred to date. 13 CLICK TO RETURN TO MENU Which leads us to today. Our formal organisation has been created in the spirit of educating and informing the public of the pitfalls of Guardianship. We have been able to define the entrapment process in five stages. Each stage is designed with an intended outcome: The capture of the decision-making abilities of a vulnerable person.
Stage 1: “TRIGGERS” LEADING TO THE ENTRAPMENT OF A VULNERABLE PERSON
A trigger is needed to commence this process. It can be major or minor. Either way, the system is alerted to a new vulnerable victim. Here vulnerable victims are often targeted by service providers, hospitals, social workers, and aged care facilities (to name a few) usually when the person is at their most vulnerable.
Other triggers: a hospital admission, the onset of a sudden illness, a decline due to age-related illnesses, allegations or concerns of abuse by a family member, loved ones empowering the State/Territory to care for a vulnerable person, signing up State/Territory prepared Wills and EPOA(Enduring Powers of Attorney), or an issue or dispute with a service provider.
Other vulnerable persons targeted are those receiving income streams/payments from the (National Disability Insurance Scheme) NDIS, car accident compensations, and even prisoners’ assets. At this stage, spotters and strangers often insert themselves into a vulnerable person’s life to take over their decision-making and then isolate the vulnerable person from their support and families. Also, at this stage, we often see a ‘file’ or formal documentation process established regarding the vulnerable individual.
It is common for medical and hospital staff to commence a process to isolate the vulnerable person psychologically or physically from support. Many cases we have been involved with confirms that such staff tells the vulnerable person that ‘they are not going home’. We see/hear from families or loved ones, or support persons upset and frustrated that they have been removed from medical decisions or denied access to files and information. Often the vulnerable person is asked a series of personal questions, a fishing expedition, about their relationships with others. Then, the vulnerable person is placed on heavy medications and subjected, against their will, to screening assessments such as mini-mental tests and another capacity testing. Often failing.
No second opinions allowed. We have seen psychological cult tactics used to unduly influence vulnerable people into decisions, not in their best interests. Bedside hearings often occur also at this stage unbeknown to victims’ families / loved ones or the actual vulnerable victims themselves. Deviously, the vulnerable person is signed up to new legal documents in the last stages of their life. We have witnessed guards placed at the door of a vulnerable persons’ room, trespass laws used to deny families access to vulnerable loved ones, and vulnerable victims transported directly to aged care facilities.
Families have even been issued intervention orders and violence apprehension orders just for raising concerns. Vulnerable victims have even died in the hospital! Even if the vulnerable person is successful at thwarting such tactics and is successful and successfully escapes the vulnerable setting before being captured, the vulnerable person and/or loved ones/support persons often end up addressing issues in a Tribunal setting (Stage 2). This area is of great concern to us as the imbalance of power (and abuse of power) is stacked against the victim and the victim’s family.
Over the years our group has been horrified after viewing misleading and false statements made by professionals against vulnerable victims and their carers. Untested allegations and events are often denied by vulnerable victims themselves, yet accepted as fact by Tribunals and other white-collar professionals. This stage is very confusing and frightening for many vulnerable people and their families, often not aware they are about to be thrown into a legal fight of their lives. Many argue it is like being on an unstoppable train.
Stage 2: “TAKING CONTROL” OF THE VICTIM – LEGALLY AND OTHERWISE
Once a vulnerable person has been identified, the fight by various groups to take over their personal and financial affairs begins.
This is not a conspiracy theory. Extensive research as well as talking to thousands of victims nationwide confirms:
Vulnerable people are being signed up to new legal documents such as EPOA’s and Advanced Care Directives whilst vulnerable;
Bedside Guardianship hearings are occurring without the vulnerable person aware nor anyone notifying next of kin or support;
Unfounded allegations of undue influence, elder abuse, domestic violence, disagreements within families, symptoms of illnesses, among others are used as an excuse to remove families as carers;
Tribunal hearings determining the fate of vulnerable victims are being conducted in an arena that does not often follow due process and engages in abusive tactics under the colour of law.
In many cases, matters are forced into a State/Territory Tribunal, which is not a court and has excessive discretionary powers and an inherent conflict of interest (and financial advantage) to award control to a State/Territory body such as the Public Guardian or Public Trustee.
Not as a last resort.
The ultimate beneficiary: State/Territory Governments. The second beneficiary of these outcomes: The Federal Government and Institutions. The Guardianship Tribunal arena is an unmonitored and unaccountable institution created by State/Territory Governments and legally can ignore normal court rules and act as it wishes, convoluting the natural justice terminology peppered throughout its constitution. Tribunal members, selected by the Attorney-General, are often not Judges (not that this matters as even a Judge is not bound by rules of evidence in this arena). Tribunal members are, legally, a law unto themselves. Tribunal members have the same judicial immunity as a Supreme Court Judge! Note, a public servant of the State/Territory selected by the Attorney-General, as an employee has the same judicial immunity as that of a Supreme Court Judge, AND has the ultimate power to decide your fate or that of a loved one!
The State/Territory is the default option, and the most likely outcome, in taking over your life! This is no accident.
The financial gains and social cost savings are indeed lucrative. Tribunal members can amend, and/or revoke existing powers of attorney, and/or implement new powers of attorney or Guardianship and Administration orders. Often that process of decision-making is protected under law from scrutiny and public exposure beyond what can be argued as required to protect their persons, instead it is used to silence their vulnerable persons and families trying to challenge Government errs and wrongdoing.
No oath is sworn and allegations are often untested, Crimes such as elder abuse, fraud, and other criminal matters are treated as ‘civil’ in nature and no investigation into serious matters is addressed. Matters are rarely directed to the police or other serious investigative bodies. Anyone who misleads the Tribunal is not subject to defamation proceedings or administrative offences. Hearings are often held in secret, often without vulnerable persons present and families/support persons and media are subject to gag orders preventing exposure of questionable, if not, illegal behaviours. Unfounded allegations and untested evidence are accepted and ‘rubber-stamped’ by a system that financially benefits from the outcomes. Cherry-picking of facts and defamation not subject to a libel/slander action.
Professional Guardianship players know the flaws of the Guardianship system and use these inherent weaknesses to their advantage. Often a useful weapon and strategy against the vulnerable. In a courtroom, perjury, fraud, destruction of evidence, and any other common law offences and criminal behaviours have likely consequences under the law. That is not the case in Tribunal settings. Aged care facilities and other related organisations are also applying for Guardianship/Administration even when a capable trusted advocate or loved one exists.
Forced Guardianship is often used as a threat to control vulnerable victims and families exposing abuses in such facilities. Capacity is often treated in a yes or no manner, black or white, rather than assessed in the various cognitive domains: cognitive, emotional, physical, and behavioural capacity.
Capacity testing is often not undertaken by an independent neurologist or neuropsychiatrist but by unqualified professionals, such as social workers. The testing itself is based on flawed screening tools and not a full neuropsychology/psychiatrist assessment. Also, of concern, testing is often not in the vulnerable person's native language nor reflective of their cultural background. A serious concern of our organisation, in particular migrant widowed women. We have evidence where testing was undertaken whilst an individual was in the throes of a urinary tract infection and /or heavily sedated under inappropriate polypharmacy and misuse of drugs. Second opinions are often not allowed or ignored.
Physical capacity is often used to justify a loss of capacity and not the mental functioning capacity of the person in specific areas, mainly executive functioning. Testing also is not focused on the practical (real-life) solving capabilities of the vulnerable individual but rather relies heavily on formal test results. Even temporary incapacity can lead to permanent Guardianship and Administration applications, keeping the victim ensnared fighting to escape the clutches of the Public Guardians & Public Trustees. This abuse of a person’s Human Rights breaches Australia’s obligations under the UNCRDP, including but not limited to Article 12.
Equally disturbing, parents of children who reach adulthood denied continued supportive Guardianship of their vulnerable now-adult children who still need continued support. It is not uncommon to hear of stories, distressing stories, of young individuals, lost to the system or to strangers and/or organisations abusing them whilst the families are powerless to step in and are forced to watch in horror. Usually, at this stage, the decision-making power is transferred to the Public Guardians and /or Public Trustees.
Stage 3: “ISOLATE, MEDICATE, LIQUIDATE” – THE PERSON AND ESTATE
Personal and/or financial decision-making has been removed from the vulnerable person (or family/support carers) at this stage.
Often as a first resort, a Public Guardian and/or Public Trustee is appointed which often disregards the protected person’s best interests over conflicting interests from aged care facilities and other organisations. Families/support persons are usually removed from this process. The vulnerable person and loved ones no longer have a voice.
The Public Guardians take control:
Accommodation
Movements and outings
Access to relatives
Support
Personal choice of medical and other care
End of life!
All personal decisions fall under this banner.
All areas of the person’s life. Many are being put at great risk when forcibly institutionalised before their time and unnecessarily. Often the aged care facility chosen is substandard. The vulnerable person and/or loved one in many cases has no say in the facility chosen. Often the Public Guardian and aged care facility work in a Cerberus-like fashion’ against loved ones and families. Aged care facilities use trespass laws to control and restrict visitation access even against a resident’s wishes – cases demonstrate this bullying can be in retaliation to bad practice exposure and reporting and/or to prevent bad practice exposure and reporting to authorities.
Behavioural and psychological symptoms of dementia have also been used to deny loved ones access to a resident/patient. Challenging ‘out of character’ behaviours are often misused as a resident’s/patient’s right or wish to stop loved ones from gaining any access to the person. It is not uncommon for a facility or Guardian to tell family members “He/She does NOT want to see you!” This is a common abusive tactic used. We call this the ‘RIGHTS CARD’.
On the other hand, if a vulnerable loved one wishes a family member to support them, the undue influence card, often unfounded, is used to deny access. The excuse used by the instigator is that the loved one/vulnerable person lacks insight and requires protection. We call this the ‘PROTECTIVE CARD’.
At this stage, families and loved ones of vulnerable persons witness many abusive restrictive practices, physical and otherwise, and are powerless to act or complain. The stress families face watching their loved ones ripped from them is unbearable and very distressing for them, their loved ones, and our organisation. Often the abuser/s goes unpunished. Administrators and Public Trustees, on the other hand, take control of victims’/vulnerable persons’ assets and legal decisions such as:
Cash
Income, Compensation, and Social Benefits
Estates and Real Estates
Life Insurance
Legal Decisions and contracts
Superannuation
Share Portfolio
Personal Belongings and more…all the income and assets
The estates are often treated as an open chequebook. Often funds are not directly used for the care of the individual, bills are left unpaid, mortgages not paid, and properties left to ruin or are mismanaged. Or the property (including personal contents) is sold prematurely and often unknown and/or against the wishes of the vulnerable person and their family. Social security benefits have been reduced or eliminated due to decisions made by Administrators that are not in the best interest of the vulnerable person.
Decisions are also made in the interests that benefit State/Territory and Federal Governments, by limiting access or cost-cutting by denying or not seeking access to essential services and benefits available. This aspect and benefit to Governments is a huge advantage to Government budgets. Investments are often placed in high-risk share portfolios, high-risk strategies are not financially feasible for elderly people, and often estates are decimated either by bad mismanagement or legal fees. Government money can be mixed in the Common Fund investments with clients’ money – unlike the Government, the Public Trustee administered clients have no say in where or when investments are moved. Examples show clients’ funds unwisely being placed in high-risk investments at times of bear markets. Fraud is not acted on and treated as ‘civil’ in nature.
The Administrator becomes the person legally and they can act as they see fit with no consequences, even ignoring the long-term core wishes of the person. Many families never receive statements nor invoices to back up any charges. Financial reporting is sparse and often errors ignored- some systemic fraud by Public Trustees are even sanctioned and not acted on as criminal violations.
Any attempts to remove the Public Trustee or Guardian is fiercely challenged. Funds for the vulnerable are even used against them! Representation has also often been denied. Publicly funded State and Territory Crown Solicitors protect the Government abusers before demonstrating the rule of law, enforcing the law and protecting citizens. This even occurs under private administration.
Challenges by victims’/vulnerable persons’ loved ones are now desired by Administrators as this allows the Administrators to crank up the billable hours leading to a quicker decimation of the estate. Crimes that are exposed during Tribunal ‘trials’ are ignored as it suits the public authorities to engage in questionable behaviours. If the States and Territories applied rule of law, we would not need elder abuse laws as the various Crimes Act in each State/Territory is sufficient in investigating and charging anyone who kidnaps, abuses, rapes or obtains property or money by deception. The UNCRPD expects more disability-equality laws, access to justice needs more than a wheelchair ramp leading to a Court!
Why are crimes against those over 65 years of age being treated as civil issues anyway? The legal system profits out of litigation – and the money and ‘price’ often paid by the victim. Why are institutions and organisations not being charged for abuses against our most vulnerable young and old as the consequences to the person is the same no matter the perpetrator? A common abuse: Administrators denying access to comprehensive financial statements to those wanting to protect a loved one and examine the expenditure. For example, in South Australia, its Public Trustee is exempt from Freedom of Information application, and when its administration ends its problematic evidence is further protected in State records for 60 years. The entrapment process is then complete.
Escape is very difficult if not impossible.
Stage 4: “NO RECOURSE, NO JUSTICE” – TACTICS TO SILENCE ALL
The first step many consider taking is a higher court appeal.
There are many obstructions in seeking justice and discouraging appeals. For instance:
Appeals can only be on questions of law and not fact or the merits of a case;
Time restrictions on appeals exist;
The financial cost of appealing is often out of reach for cash-strapped victims;
Vulnerable victims have been denied representation or their own funds denied to appeal;
In some cases, the appeal is directed back to the original Tribunal!
Many victims or loved ones do not have the luxury of time to carry on the fight. We see this as a serious issue in cases especially involving involuntary euthanasia. Fighting to save the life of a loved one is the most distressing and inexcusable form of torture imaginable. Other organisations such as the Legal Services Board, Medical Boards, and other organisations self- review their members. It is not uncommon to see blatant fraud and abuses ignored or covered up in the complaints processes. There is no avenue to appeal disciplinary processes. Guardianship and Administration orders silence the vulnerable person's voice and often decisions made override the person’s known or current wishes and best interests.
The cost and means to force transparency and accountability are often out of the reach of our most vulnerable persons (or their families) in society. In frustration many vulnerable persons and their loved ones post their plight on social media or other social platforms only to face legal threats and retribution, stalking or using a carriage to menace charges, fixation threat charges, or threatened with permanent isolation or restricted visitation rights. Vulnerable victims have fled interstate or overseas to escape the system. Many have suicided, and others forced to accept their newly restricted and/or incarcerated lives. Families are financially, emotionally, physically, and mentally destroyed fighting the system – the vulnerable person and loved ones always paying financially and Healthwise. At this point, it is a vicious circle, and often the only escape many vulnerable victims feel: is death.
Stage 5: “DEATH” OF THE VULNERABLE PERSON
At this stage, it is not uncommon to see Public Trustees and others attempt to deplete estates even after the death of a vulnerable victim.
If the Public Trustee has somehow become the Executor of a Will (either because a Will is declared invalid, or the victim had nominated the Public Trustee as Executor) or the vulnerable person was ‘signed up’ to new legal documents as they were dying, nominating the Public Trustee, then delays are often part of the course. Conflict at this stage is welcomed by the public executor, as any conflict, generates more and more fees for the Public Trustee, Administrator, or executive.
It is almost encouraged. Our organisation has witnessed the Public Trustees challenge perfectly valid Wills on the behalf of a living vulnerable person against siblings, partners, and other beneficiaries (even in the absence of any conflicts) to acquire as much of the estate and charge the estate as much as possible. Cases have been dragged out for years and decades even decimating estates or forcing exhausted beneficiaries into giving up. We can no longer afford to have institutions in Australia that ignore the rule of law.
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The Guardianship system is open to abuse of power, corruption, and collusion and there is no transparency and or accountability. Within the law, we have to force ‘checks and balances’ to remove injustices in the Guardianship arena. Evidence and stories and eye witnesses confirm just some concerns that are in clear contravention of vulnerable persons’ Human Rights to a fair trial as well as the United Nations Convention on the Rights of Persons with Disabilities.
Life sentences deserve to be heard in a courtroom that follows court rules, in particular, rules of evidence, otherwise, serious injustices are likely to occur. These are life sentences and the facts deserve serious scrutiny. These serious issues should not be heard in a setting created initially to deal with small claims matters i.e. a State/Territory Government Tribunal setting.
A Guardian and Administrator have complete control over the life and decisions of a vulnerable person, so essential stringent checks and balances must be put in place before their human rights are removed. State/Territory and Federal Governments and vested interest groups will fiercely argue against changes to the Guardianship system as this business model generates not only billions in the acquisition of estates nationwide to the States but results in massive savings for the Federal Government (and tax advantages) in the multimillions by denying access to essential services and benefits.
Currently, in 2020, conservatively 20 billion dollars is under public management and much more privately. Massive conflicts of interest and unlimited funding allow this system of racketeering to continue to flourish. Guardianship abuse is one of the 21st century’s greatest crimes against our most vulnerable and their loved ones. This abuse will be exposed. It will be talked about and many will be horrified to discover how long this systemic abuse has been occurring at the hands of our State/Territory and Federal Governments and white-collar professionals, under the false guise of “protecting our vulnerable”.
AASGAA rejects the premise that the Guardianship system in Australia is a protective arena. Evidence confirms it is an abusive arena often involving white-collar fraud and racketeering. The question many will ask: many knew, participated in, and/or condoned this abuse yet instead of protecting our vulnerable, they sat back in silence and failure to act.
Why?