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Horrific stories of secrecy, control and abuse have emerged from the disability royal commission which this week is examining the role of public guardians and public trustees.

Both are appointed when a person is deemed by a tribunal to not have the capacity to make their own decisions: public guardians make decisions over a person’s accommodation, medical and personal care; public trustees oversee a person’s finances. They should be an appointment of last resort. 

As revealed in a Crikey investigation from September last year, more than 60,000 Australians are under state control. Victims of the system have accused state governments of profiteering from financial administration orders, with public guardians ignoring people’s wishes about where and how they want to live. 

Strict gag orders prohibit those living under guardianship orders from being identified, even if they wish to be, with hefty fines and jail terms for those who break these orders. Those identified in the commission are either only under financial administration orders, have had a guardianship order revoked, or the person under the order has died. 

One First Nations man using the pseudonym Anthony described how his mother was drugged and abused while under the care of the office of the public advocate in Western Australia. She had been placed in an institution and alleged she was subjected to sexual and physical assault there. She was never taken to the dentist and all her teeth had to be removed because of decay.

Victoria — another pseudonym — had an interim guardianship order revoked and said because of the effect her medication had she didn’t understand which tests were being conducted. Victoria discovered she had been placed under administration only when she tried to withdraw money from the bank and couldn’t. She’s stopped taking medications to help with motor problems because they affected her cognition. 

Another woman told the commission the Queensland public trustee had mismanaged her brother’s finances, and challenged their parents’ will to get him more money. Awarding him more compensation — which she said wasn’t necessary thanks to his National Disability Insurance Scheme funding — would have affected his access to public housing and Centrelink payments. 

A common theme was a lack of consultation with both the person under a guardianship order and their families. WA’s public advocate Pauline Bagdonavicius told the commission the state’s budgeted staffing was an average 55 clients for each guardian. 

In almost all cases, people had no idea of the ramifications of a guardianship or financial administration order — or how difficult it is to have them revoked. This secrecy, coupled with gag orders, gives the state representatives a huge amount of power over their clients — or, as CEO of the Queensland public trustee office Samay Zhouand refers to them, “customers”. 

As counsel assisting Kate Eastman asked: “Do you accept that the secrecy and confidentiality provisions operate in a way where the power disparity between the client or customer and the respective agencies is enormous?”

A major concern is what happens when someone regains capacity — for example, when an elderly person becomes delirious after a urinary tract infection and recovers after a course of antibiotics, or someone who has fluctuating capacity. 

When asked about fluctuating capacity, Zhouand told the commission there were no specific policies but the office went by an “individual case-by-case approach”. He confirmed the trustee’s integrity policies were not public. 

The commission will continue examining guardianship and substituted and supported decision-making until Friday.