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TRIBUNALS & COURTS
Matters heard in a Court of Law on Guardianship Matters..
At present in Australia, matters are heard in Tribunals and the following issues are a concern:
Not a Court of Law
No oath swearing
Tribunals are not bound by the rules of evidence
Tribunals can determine matters as they see fit
Not the role of the Tribunals to determine the truth
Cannot appeal on Facts or Evidence
Can only appeal on Question of Law
28 Days to appeal on Questions of Law
Victim is a Protected Person which
Victims and Families have complained about being bullied in mediation sessions and hearings
Natural Justice exists in legislation but not in practice
Transcripts often not recorded or kept at present.
Guardianship Matters Video Taped and on file for 7 years to all parties
Administration of Justice Offences be deemed Criminal in Guardianship Matters
The court must report these matters for Investigation. At present many Administration Offences are ignored.
Victims & Families have the right to representation
Mediation should not be conducted in secrecy
VULNERABLE INVESTIGATIONS UNIT ( VIU )
Creation at a Federal level of VIU to Investigate abuse, exploitation and neglect of Vulnerable Australians
VIU Investigation Powers to include ANYONE suspected of Vulnerable Abuse
Professional Standing or position is irrelevant.
Vulnerable Investigation Unit to prepare Investigation Reports for Courts...
follow Procedural Fairness. These Reports must be provided to all parties in the proceedings before the matters are dealt with in a Court of Law in order to allow all parties the right to reply.
VIU follow principles of Procedural Fairess and Natural Justice in Investigations & Reporting
When a vulnerable person Capacity is in question, VIU must select two Neuropsychiatrist of reputable standing to assess the Vulnerable Person..
the family / support person (as well as the Vulnerable Person) has the right to select the Doctor in question. In cases where the Vulnerable Person refuses an assessment, then an inference can be drawn.
FAMILIES/ SUPPORT /CARERS
Family, Next of Kin or Support Person should have the natural right to be the Guardians & Administrator of a loved one. Guardianship & Administration to anyone else should be a last resort.
Family Conflict should not be used as an excuse to remove trust worthy next of kin from becoming Guardian & Adminsitrator.
POWERS OF ATTORNEY & WILLS & HEALTH CARE DIRECTIVES
URGENT: Signing of Powers of Attorney & Wills & Health Care Directives to be Banned in Vulnerable Settings & Institutions
URGENT: Guardians & Public Trustees & Government Employees BANNED from preparing Powers of Attorney & Wills & Health Care Directives for Vulnerable Australians
Powers of Attorney & Wills & Health Care Directives prepared when a person had capacity, to be non revocable unless...
there is probative evidence that the Attorney in question is exploiting or taking advantage of the Principal. This evidence must follow the laws under Rules of Evidence in each State.
Powers of Attorney & Wills & Health Care Directives non revocable once Capacity is in question...
and only then issues must be heard in a Court of Law.
It should be Illegal for Powers of Attorney to be prepared without next of kin or Defacto being notified.
Symptoms of Illnesses should NOT be used as a reason to revoke valid Powers of Attorney & Wills & Health care Directives
Witnesses signing Powers of Attorney & Wills & Health Care Directives need to be examined
GUARDIANS & PUBLIC TRUSTEES & ALTERNATIVES
Closure of Public Trustees Nationwide
There are more viable options for the vulnerable and their families. Family, if possible, should always be allowed to take charge of their own affairs. In cases where this is not possible, then 20+ Law / Accounting Firms should be on offer to families to select who they wish to look after the financial affairs.
These institutions should work with the vulnerable person and their families. Families should not be removed from decision making.
Guardianship by State Authority as a LAST Resort when every other option has been exercised
Family Advocates or Support Person first option. n the case of conflict, a Court of Law must , with probative evidence at hand and long term core values, then select the Family Member or Support Person that would honour the vulnerable persons wishes.
Until Public Trustees Statewide are closed, their role should be restricted and employees prevented from dealing with Vulnerable Persons.
Separate Federal Vulnerable Investigation Unit (VIU) established to examine Elder Abuse and 'issues' affecting Vulnerable Australians.
Guardians & Administrators to refer matters for investigation to Vulnerable Investigative Unit
Administrators should not be allowed to use funds of the represented person for any matters other than for their personal and financial care
Administrators should only be allowed to charge fees on services provided. Fees should be open to a full audit.
Every individual should be assumed to have Capacity unless there is some evidence to suggest otherwise.
Nationally Recognised Standard of Assessing Capacity.
We need to address protecting vulnerable individuals who have capacity but still open to abuse, exploitation and neglect.
In cases of questionable Capacity, two Neuropsychiatrists specialising in the illness at hand to determine Capacity
Capacity to be Assessed by relevant Neurologist, Psychiatrist or Neuropsychiatrist only
Medical Capacity to be determined by Medical Professionals qualified to assess Capacity and not the Law Institute or its Members nor Psychologists
Capacity Testing should be extensive and address each cognitive domain and ramifications in decision making
Decision Making testing should address : Memory Impairments (not retaining only); weighing up risk and consequences; understanding information and communicating decisions
Mini Mental Tests to be BANNED as an indicator of Capacity
The argument "Capacity is Fluid" to be banned as a plausible excuse in assuming functioning Capacity.
Physical Capacity as an indicator of mental capacity and reasoning to be deemed non applicable
GUARDIANSHIP & ADMINISTRATION ORDERS
Guardianship & Administration by State Authority / Administrators as a LAST Resort
Powers of Attorney & Wills & Health Care Directives prepared when one had capacity to be non revocable unless...
Court to accept only Capacity Reports following Nationally Accredited Capacity Guidelines
Guardianship Matters to be Heard in a Court where Natural Justice Principles & Appeal process apply
General Practioners and Geriatricians not to be allowed to determine Capacity. Only to refer patients to Neurologists, Psychiatrist or Neuropsychiatrists.
Doctors should be assessed for Professional Misconduct if making false and misleading allegations.
Complaints against Medical Practitioners regarding our Vulnerable should be investigated by the VIU with an appeal process in place
Vulnerable Abuse (exploitation, abuse & neglect) should be made a crime
Whistleblowers need to be protected and encouraged in all professions to stamp out corruption
LAW FIRMS & LAWYERS
Lawyers to be banned in preparation or revocation of POA & Wills & Health Care Directives if there is any question of a Capacity Issue at hand...
Any question of capacity should be addressed in a Court of Law.
When the question of informed consent is an issue, the Law Firms representing the vulnerable person should accept the case on a Probono basis or on a No Win No Cost basis.
In the interest of Justice, a Lawyer is required to encouraged their client to undergo any testing to address the matters at hand as quickly as possible.
Lawyers Investigated by Police & Fraud Squad on issues relating to Vulnerable People.
Lawyers should be allowed to report fellow colleagues on suspected abuse on Vulnerable
Law Fims should NOT be involved in Doctor selection or have any links to organisations in determining the Capacity of a Vulnerable person.
Complaints against Law Firms / Lawyers regarding our Vulnerable should be investigated by the VIU with an appeal process in place
Reward needs to be removed to reduce Law Firms taking on cases that exploit our Vulnerable
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