Intellectual Disability and Ageing Workshop

Legal Issues

John ChestermanManager, Policy and Education

OPA’s services

Functions

• guardian of last resort • investigation of applications to VCAT• advocacy: individual and systemic • supporting private guardians• advice service• community education• awareness: website, publications, media

OPA’s services

Advice Service: 13,398 calls

Community Education: 184 presentations

2011-12

Breakdown of casework services

378

531

1,708

Advocacy Investigations Guardianship

2011-12

OPA’s volunteers

Volunteer programs

• Community Visitors Program • Independent Third Person Program • Community Guardianship Program

Breakdown of volunteers

220

320

CommunityGuardians

ITPs CommunityVisitors

75

2010 - 11

Services provided by volunteers

Community Guardians: provided services to over 100 people.

Independent Third Persons: attended 1,958 police interviews.

Community Visitors conducted over 5,000 visits in 3 streams:

• Health Services (SRSs)• Disability Services• Mental Health

2010 -11

VCAT

VCAT (Victorian Civil and Administrative Tribunal) Guardianship List

Mission

Protect the personal and financial affairs of adults with a disability who are unable to make reasonable decisions about their person, circumstances or affairs.

VCAT (cont.)

Role

• appoints guardian and/or administrator for up to 3 years

• consents to special procedures

• safeguards the operation of enduring powers of attorney

• is more informal than a court

• legal representation not required

• tries to make the process accessible

Guardianship & administration

Guardian• Appointed to make personal and lifestyle decisions

­ accommodation, medical treatment, access to services etc

• This often occurs as a result of significant levels of conflict or risk.

Administrator• Appointed to make financial and legal decisions

­ paying bills, or managing property etc

Guardianship & administration (cont.)

When is a guardian / administrator appointed?

When the represented person:

• Is 18 years or over and has a disability

• Cannot ‘make reasonable judgments’ because of the disability

• Needs to make a decision and there is no less restrictive alternative than appointing a guardian / administrator

• Needs someone to act in their best interests

Application process

APPLICANT Advice service or website

VCAT Investigation

ORDER

Administration

• Private administrator

• State Trustees

All financial and legal decisions

Guardianship

• Private guardian

• Public Advocate

Limited to:

- health care

- accommodation

- access to persons

- access to services

Or plenary (all)

Guardianship (cont.)

Who can be a guardian?

• A relative or friend of the person

­ who will act in the person’s best interests

­ does not have any conflict of interests

­ who is available and accessible

­ is someone familiar with the person’s values and beliefs

• VCAT must be assured the guardian will act in the best interests of the person

• If there is no one available or a need for an independent person, the Public Advocate can be appointed as guardian

New guardianship clients – by disability (2011-12)

Dementia 34%

Acquired brain injury 17%

Mental health 20%

Intellectual disability 18%

Physical 12%

New guardianship clients by age (2011-12)

80+ (31%)

65 to 79 (22%)

50 to 64 (22%)

35 to 49 (12%)

20 to 34 (9%)<20 (3%)

2010-11

Other VCAT orders

Guardianship matters• temporary - 21 days• provide advice to guardians• consent to special medical procedures

Administration matters• temporary - 21 days• provide advice and direction to administrators

Enduring Power of Attorney matters• various powers to make orders relating to enduring powers of

attorney and guardianship

Guardianship

A guardian will:

• be an advocate

• protect the person from abuse, exploitation and neglect

• respect family relationships, cultural background and confidentiality

• consider the person’s wishes and the least restrictive option

• consult with anyone who has a real interest in the represented person’s well being

Guardianship & administration (cont.)

Guardians and Administrators must act in the represented person’s ‘best interests’.

This means ‘taking into account, as far as possible, the wishes of the represented person’.

Case study - guardianship

Scenario

Jane is 32 and has an acquired brain injury. After her marriage broke down following her accident, she went to live in a Supported Residential Service (SRS) where she met another resident, Danny. Jane developed a relationship with Danny. They decided to leave the SRS and went to live in a caravan in a country town. Jane's family was worried that she would not be able to look after herself and may become pregnant. They applied to be appointed her guardian with the intention that she be brought back to the SRS.

Case study - guardianship

Resolution

The Public Advocate was appointed guardian (for accommodation) and after consultation with Jane, Danny, their families and service providers, decided that she could cope outside the SRS environment so long as community supports were in place. An urgent application was also made for priority public housing for the couple. A guardian has no authority over another person's sexual life but arranged for Jane and Danny to have counseling, after which they made the decision to use contraception as they did not feel ready to have a child at that time.

Case study - advocacy

Scenario

Mr B is an intellectually disabled young man with significant behavioural problems. He was required to move from one group home to another and had significant difficulties in settling into his new house. His behaviour deteriorated and he assaulted one of the other residents. The other four residents of the house, through their family members, made an application to the Magistrates' Court for intervention orders against Mr B. The Magistrate adjourned the proceedings and referred the matter to OPA.

Case study - advocacy

Resolution

The OPA advocate undertook extensive consultation with parties, including DHS senior managers and family members. It was clear that there were communication problems and significant distrust between the parties. The advocate sponsored a meeting to promote discussion among all parties to clear the air and open up lines of communication. The advocate satisfied himself that difficulties had settled down and that the risk of further incidents had substantially diminished. The Magistrate was provided with a report concerning these actions.

Janet

• Janet is 52 and has lived in a home with 4 women since she was 28.• 2 weeks ago she broke her leg and then spent 10 days in hospital. • You visit her in hospital. She’s ready to come home, but confused.

Wound needs to be watched and the dressing changed daily. No staff at home during the day.

• The decision has been made (you and physician agree) to put Janet into aged care while her wound heals (sister is angry).

• A few weeks later, when you visit, Janet’s situation has improved. Her confusion has cleared.

• But you are told she is staying in aged care, where she has no friends (the decision has been made by Janet’s sister). According to the Director of Nursing the decision was made by the family and is final.

Janet - Questions

1. Are there any legal considerations?

2. Was this an appropriate move? If not, what might have been done to prevent the move? Think about what else the supervisor, manager or carers might have done differently.

3. What community resources might the supervisor have consulted?

4. What sort of organisational policy might have been helpful in responding to this situation? How might Janet have been involved?

Bert

• Bert is 49 and has lived in the group home most of his life.• His family (sister, brother, two nieces) visit regularly.• Bert is close to staff and other residents, especially Larry.• In the last 18 months Bert’s become increasingly confused. He can no

longer dress himself and is disruptive at meal times. He’s getting up at night, entering others’ rooms, waking residents. He’s been diagnosed with Alzheimer’s and diabetes, and is incontinent (urine).

• He has trouble walking and has fallen twice. His sister has complained about his care.

• Staff think he needs to be in aged care, but you are distressed about this. When you tell the family, and ask them to find him a place in aged care, they say he’ll be staying in the group home.

Bert - Questions

1. As group home supervisor, see yourself as Bert’s advocate in this situation and want what is best for him. So what will you do? Is there anything the other group home staff can do?

2. What are Bert’s legal rights here and how do you think they can best be promoted?

3. What would need to be done in the group home to keep Bert there?

4. What is the best way to work with the family? Who should be involved in the decision making and what needs to be considered?

Order Take Control

Victoria Legal Aid

Tel: (03) 9269 0223

Order Take Control online at:

www.legalaid.vic.gov.au

For more information...

OPA Advice Service

1300 309 337www.publicadvocate.vic.gov.au

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