Sunday, April 23, 2017
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Guardianship Reform

Commitments sought

 

  1. Commit to reforming the Guardianship and Management of Property Act 1991 (ACT) in line with the National Decision Making Principles proposed by the Australian Law Reform Commission and the UN CRPD;
  1. Commit ongoing funding to programs for people with disabilities to support the establishment of supported decision making arrangements;
  1. Commit funding to individual and self-advocacy services for people with disabilities to support their expressed will and preferences in a range of settings.

What is currently being done?

Disability led responses

-       None. There are currently no programs funded by the ACT government controlled by and for people with disabilities to implement guardianship reform. Advocacy for Inclusion is the only Disabled People’s Organisation offering individual and self-advocacy, however capacity is very limited and no specific funding is provided to support guardianship reform or specific decision making supports.

Disability specialist responses

-       One small scale non-ongoing training program targeted at support people is currently underway and will end soon.

Mainstream responses

-       The Guardianship Act has been reviewed, but the report has not yet been released by the ACT Government.

Background

 

Under the ACT Guardianship and Management of Property Act, people with cognitive impairment can be deemed to lack decision making capacity and be assigned a substitute decision maker. This denies recognition of an individual’s decisions in the eyes of the law. It is now widely recognised that such practices are outdated, and fail to recognise that with appropriate social supports, people with cognitive impairment can make decisions for themselves. It also fails to honour Article 12 of the UN Convention of the Right of Persons with Disabilities (CRPD), which requires States Parties to “take action to develop laws and policies to replace regimes of substitute decision-making with supported decision-making, which respects the person’s autonomy, will and preferences”[1] As a signatory to the CRPD, Australia and therefore the ACT[2], is obliged to substantially reform guardianship legislation.

In light of these issues, the Australian Law Reform Commission proposed four National Decision-Making Principles and recommended legislative reform consistent with these principles:

  1. The equal right to make decisions: All adults have an equal right to make decisions that affect their lives and to have those decisions respected.

  2. Persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.

  3. Will, preferences and rights: the will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives.

  4. Safeguards laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

Supported decision-making is a relatively new model for supporting people with cognitive disabilities to make decisions, exercise their legal capacity, and retain and build decision making skills. They do this with support from a selected network of people or an individual such as a friend, or family member. These supporters help the person with disability to gather and consider information about significant decisions. They help the person to weigh up the pros and cons of decisions as well as the likely outcomes and consequences. Unlike guardianship practices which acts on a “best interests” principle, this model prioritises the person’s rights, will and preferences with respect for their self-determination.

Supported decision-making agreements are currently used in parts of Canada, the UK, and have been successfully trialled in South Australia. The South Australian Office of the Public Advocate (OPA) evaluation highlights the benefits and successes of supported decision making as an alternative to guardianship in the Australian context, including increased skills and confidence in decision making.[3] The ACT Government has shown interest in reforming Guardianship legislation by conducting a review of the legislation and exploring supported decision making via the funding of one small, short term supported decision making project. A commitment is now sought to reform the legislation and fund sustainable decision making support programs for people with disabilities.


[1]Committee on the Rights of Persons with Disabilities. (2014). General Comment no. 1. Retrieved from https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G1403120.pdf?OpenElement

[2] The ACT is obliged to implement the CRPD through Australia’s ratification, but also through S 8 of the ACT Human Rights Act.

[3] Wallace, M. (2012). Evaluation of the supported decision making framework: office of the Public Advocate. Retrieved from http://www.opa.sa.gov.au/documents/11_Supported%20Decision%20Making/8-Final%20Supported%20Decision%20Making%20Evaluation.pdf