SUMMARY OF AASGAA GUARDIANSHIP & ADMINISTRATION RECOMMENDATIONS
1. Guardianship and administration matters to be heard in a court of law at a federal level. Court rules and the evidence act are strictly to be adhered to. This recommendation would eliminate many of the injustices currently seen in guardianship. Appeals to a higher court, are to be easily and promptly accessed.
2. Valid powers of attorney and advanced care directives and wills prepared when the person had capacity (or assumed to have had the capacity and no evidence exists to contradict as such) adhered to. A person’s wishes are not to be overridden without a court demonstrating clear evidence of incapacity and/or undue influence at the time when the document/s was created.
3. Wills prepared, especially when close to a person passing or a diagnosis of an illness that affects judgement or under medication, be scrutinised at the probate level. This issue will be explored further by AASGAA as an undue influence (and capacity not in question) is difficult to prove in a court of law and is a growing problem nationwide. Last minute documents as a person is palliative must be investigated.
4. Those born with a disability and unable to prepare legal documents such as EPOAs, or next of kin are to be automatically appointed as guardians. Any disputes regarding these matters must be addressed in a court of law at a federal level where court rules and the evidence act of the State/Territory apply.
5. Powers of attorney and legal documents prepared in vulnerable settings be banned outright and the public trustees nationwide scaled back severely as their commercial business interests conflict with their social justice role.
6. The legal ability to prepare and revoke powers of attorney and advanced care directives is to be explored further. Anyone can sign up a vulnerable person for new legal documents. At present, powers of attorney can be revoked by law firms or anyone for that matter, even after medical assessment declares a person to lack capacity without stepping into a courtroom – appeal options to be supported by legal representation through an independent Court.
7. Guardianship and administration by the State/Territory or other vested groups to be the last resort when no suitable family or support exists as per the current guardianship act. Guardianship and administration be ‘the last resort’: the duty of families and loved ones, and prior long-term arrangements not be disturbed but be recognised and upheld. A court, not a tribunal, decides which family/support person acts as a guardian/administrator in cases of conflict based on verifiable evidence, not questions of law. Public trustees (Administration) must be under the same federal act as private trustees must operate and are accountable to ASIC.
8. No application for guardianship and administration by organisations, institutions, strangers, abusive relatives, or next of kin be entertained without a valid probative reason. Conflicts of interest are to be investigated thoroughly, based on evidence and cross-checking, before an application is considered in the best interest of the person.
9. ‘Bedside guardianship hearings’ must be undertaken by a court/court process and strict court rules and the evidence act applied. ‘Bedside hearings’ only be performed in emergencies and a person’s next of kin/family/support person is to be notified before the hearing and allowed to be present at that hearing: independent legal representation must be provided free of cost to the person under review. The bedside hearing process must follow court rules, especially evidence-based ones.
10. Supported decision-making adhering to the United Nations Convention on the Rights of Persons with Disabilities always be adhered to by guardians and trustees and be legislated and enforced. Substitute decision-making is only required in cases where the person is making a decision that will lead to self-harm, harm others in society, or the vulnerable person is about to engage in criminal activity or on matters they cannot consent to or understand. Institutions that are to benefit from financially, cannot be involved in any part of making such decisions other than to provide facts and figures relating to such decisions.
11. Least restrictive options sort before substitute decision-making is applied, but not limited to: caveats on properties, Centrelink directly paying bills, banks notified of a vulnerable person and only then limit large withdrawals, informal family support (not the removal of all family), creation of trusts controlled by the person and family, powers of attorney effective only on specific areas where impairments exist not on all areas of life (i.e. legal contracts, property transactions, etc). Many more least restrictive options are available and many people with disabilities live quite safely without substitute decision-makers.
12. Legislation currently disregards demonstrated long-term core wishes and behaviours of the vulnerable person: these always need to be ascertained and then compared with the currently expressed wishes of the vulnerable person. Many medical, social, and educational influences, including neurological medical conditions (including dementias, and frontal lobe damage) and other medical conditions including depression and delirium, lead vulnerable people to act abnormally: vulnerable people can often be easily manipulated, groomed, and coerced into decisions that are not in their best interests, especially towards the end of their life.
13. A nationally recognised and accepted standard of testing to assess capacity is urgently needed. Capacity to be clearly defined, and tests focus on addressing judgement (executive functioning) and the ability of the person to assess risk and weigh up consequences. The tests are consistent and relevant in the everyday life of the vulnerable person. Many vulnerable individuals can perform activities of daily living yet are unable to function at a higher level (i.e., understanding and signing documents and more complex decisions). When assessing capacity, only qualified independent professionals must be accepted to assess capacity and such testing/assessment must be undertaken in the comfort of the person’s natural environment or a comfortable setting. Assessments must be in a format and language/culture familiar to the person. The person must have, if prescribed, their correct spectacles and/or properly adjusted/correctly inserted hearing aids. They must also have a family member or familiar trusted support person accompany them to/during the assessment. A person must not be under any adverse medication or anaesthetic that causes side effects, which could be mistaken for incapacity. Nor a person be unwell when undertaking a capacity assessment: delirium, depression, and short-term or reversible cognitive impairment caused including infections, such as urinary tract infections (UTIs) or pneumonia, vitamin deficiency, dehydration, and reactions/side effects from medications (including polypharmacy) or anaesthetics all must be discounted before making a dementia diagnosis and/or incapacity ruling.
14. Restrictive practices (chemical restraint • environmental restraint • mechanical restraint • physical restraint • seclusion) are often abused at the hands of guardians and those authorised by guardians such as aged care workers, group homes, NDIS supports, hospitals, and others. Restrictive practices are the last substitute resort and the guardian must be subjected to serious criminal offences if these practices are knowingly used without proper justification or authority.
15. The vulnerable person (or support/family persons) should always be encouraged and supported to administer their financial affairs where possible. This should always be the first and default option. If external administration is the only option available, then charges and yearly fees need to be capped and limited. The financial reports must be provided to all direct family members or an independent legal representative. Mandatory prosecution of financial exploitation under the crimes act must apply. Yearly audits are only required in cases where there are conflicts raised in a formal setting or issues raised and administration needs to be monitored. Administration orders should not be ‘fixed’ and alternatives and competitive options are / should always be considered and accepted if safe to do so.
16. Vulnerable people should not be treated as ‘dead under the law’ (i.e., have no legal rights or right of legal due process due to disability). If a vulnerable person (in need of guardianship/administration) requests a new administrator/guardian and the reasons are sound and not due to undue influence or symptoms of illness, which may impair their judgement, then they to be provided a legal process/means to change the guardian/administrator (more like Commonwealth assisted moves between Aged Care Homes). Crucial and non-crucial decisions should be defined.
17. If a trusted family member or support person is unavailable or unsuitable as guardian/administrator, (based on verifiable evidence) then alternative administration options are to be selected from a variety of trusted agencies that are strictly regulated and accountable to ASIC. Costs are to be strictly reviewed and the person and family are given the option of moving to another administrator if the arrangements and relationship change or decline. The administration is to be charged on a fee-for-service basis. Family and support be allowed to raise cost concerns to an independent regulator who has the power to investigate and refer the matter of unconscionable conduct to the police with the assurance of remedy under the law. Detailed transaction Statements must be provided to all stakeholders and next of kin, plus invoices on demand (or they must be provided at routine periods).
18. Suppression orders and protective gag orders can only be applicable in extreme cases and are subject to independent review demonstrating the best interests of the person would be paramount. Currently, once a person is legally deemed ‘protected,’ they are gagged from speaking out as are their family/support person/s. The secrecy and protective gag laws create injustice and protect against wrongdoing. Gag orders must be abolished.
19. A separate body needs to be established to evaluate cases of misconduct to remove institutions from self-investigating and self-assessing complaints of their members or institutions for misconduct, eliminating conflicts of interest. The current bodies that claim they investigate their professional member’s actions, institutions, and organisations operate on a self-review, self-investigation basis. AASGAA has witnessed many actions we deem as ‘criminal’ in nature ignored or not actioned on by appropriate legal bodies. False allegations made to any court or review panel are to be punishable under the Crimes Act.
20. Elder abuse by any person, institution, professional, or organisation is to be treated as a crime under the crimes act or code in the State/Territory. Currently, there is inaction in this area by police, government offices, and/or the Department of Prosecutions (DPP). State and territory government entities are currently above transparency and accountability – while there is no federal oversight, there is no rule of law.
21. A clear definition of ‘palliative care needs to be legislated into law. Currently, the view of palliative care varies from providing comfort and support to removing fluids and nutrition. Palliative care is not the removal of fluids and nutrition when a person is not in the final stages (hours) of death. The criminal code to apply if involuntary euthanasia is identified: includes when governments are accountable.
22. Do Not Resuscitate (DNR), apnoea testing, organ, or tissue removal is not to be conducted unless clear instruction by the person exists within an advanced care directive or was expressed to trusted family members when they could do so. If no advanced care directive exists, and a conflict of views exists as to the person's true wishes, then the natural default is to not proceed with a DNR, testing, or removal of any body parts.
23. AASGAA is against research or testing being conducted upon people who cannot give consent! Guardians should be prohibited from approving any medical research or testing unless an Advanced Care Directive authorises such research and testing.
24. Involuntary euthanasia is murder. Euthanasia is to be voluntary and a request, with no doubt, by the person when they could make such a request. If an advanced care directive does not exist, then the wishes of close family/support must be considered. Any doubt about the wishes, the default option always be to then not engage in the approach of euthanasia.
25. If a request for an autopsy exists in an advanced care directive or there is a valid reason to determine the cause of death, an autopsy is to be conducted. The coroner’s report must be conducted within 6 months of death and provided in full to the family upon formal request. Death certificates must be clear and label the true cause of death. Not wrongly categorised as the underlying disability or illness. The death certificate must identify medication in the body, all pre-existing medical conditions at the time of death (e.g., cancer), and the actual cause of death (e.g., pneumonia).