(Image: Private Media)

This is the latest instalment in Crikey’s investigative series Kidnapped by the State. For previous instalments, go here.

Diana has worked hard all her life. After migrating to Australia from Europe as a young mother, she and her husband worked blue-collar jobs to support their three children, paying off their home until they reached retirement. She speaks English with a heavy accent and occasionally requires a translator. 

Diana is in her 80s and hoped she could spend her golden years doing what she loved — gardening, hosting large family barbecues, and cooking with her grandchildren.

Instead she’s been placed under a guardianship order, with two of her three children managing her personal affairs and finances. The public trustee has since been appointed. Her children have moved her out of her house and limited the access she has to her money, allowing her to withdraw $150 of her almost $500 pension payment each week. While one test conducted in English concluded Diana has signs of dementia, two further assessments — one conducted in her native tongue — showed no signs of impaired decision-making. 

“I want it all back. I want my life back,” Diana told Crikey. “No one asks me about what they’ve done.” 

As previous Crikey investigations revealed, tens of thousands of Australians live under a guardianship order. Strict gag orders prohibit anyone under these orders from publicly identifying themselves, with hefty fines and prison sentences for anyone — including journalists — who do so. Pseudonyms have been used and identifying details omitted in this article to protect Diana’s privacy. 

When faith in family backfires

Diana’s husband died in 2016 after a long illness. The family had been disjointed for some time and there is still a rift — particularly over the family’s finances — between Diana’s children: James and Justine on one side and Rebecca on the other. Shortly after their father died, James and Justine applied to become Diana’s enduring power of attorney, meaning they could make life decisions once Diana was deemed to not have the capacity to do so for herself.

But Diana told Crikey she wasn’t aware of what she was signing at the time and trusted her children when they presented the documents to her.

Three years after this document was signed, she was taken to her family doctor, who conducted a mini-mental state examination — a test ranging from 10 to 15 minutes — which confirmed dementia. Her two children applied for a guardianship order, which was granted earlier this year, giving them control over her accommodation and medical decisions and, initially, financial decisions, though this has been placed under the control of the public trustee. The order is up for review early next year, but Diana is fighting for an earlier hearing.

State tribunals consider medical documents to determine whether someone has the capacity to make decisions for themselves. The tribunal member will often appoint a family member as a guardian, or a state representative if they consider there to be a conflict of interest within the family. They are supposed to be a system of last resort.

While tribunal interpreters are provided, multiple people who had spoken to Crikey previously, and who appeared before the disability royal commission — which last week examined guardianship — said some people didn’t understand the tribunal processes, even when English was their first language. People aren’t sent information before a tribunal hearing about what a guardianship order entails — instead they are directed to an online brochure, if they’re aware the hearing is even taking place.

Diana doesn’t believe she has dementia. She completed two Rowland Universal Dementia Assessment Scale tests, which are specifically designed to minimise the effects of cultural learning and language diversity on a person’s cognitive assessment. She finished them in her native tongue and scored over 22 for both — showing no cognitive impairment.

Earlier this year, one doctor, who speaks her native tongue, said Diana was able to manage her medications and would be capable of living by herself with some low-level family support and an aged care package.

“I’ve been in the Commonwealth for 50, 60 years, and nothing ever changed,” Diana said. “Now, I’m in a big mess.” 

She’s told the tribunal many times that she wants her guardianship order revoked. This happens extremely rarely, although the tribunal may decide a state representative should act as her public guardian instead of her children, with the public trustee potentially appointed to manage her finances.

Deepening family frustrations

The guardianship orders have deepened the family rifts. Justine and James want to maintain their position of guardians but Rebecca wants the guardianship order to be removed as a first priority or to replace her siblings as a last resort. Diana’s brother is fighting for her independence from abroad and is considering involving international lawyers.

Diana just wants her independence back. She has been dragged into a complicated battle between her children. She has been shuttled between Justine’s home, an aged care facility, the hospital and now Rebecca’s home, where she lives. Mail has been redirected from her home to Justine’s, making it difficult for her to manage her affairs and she said the keys no longer work at her property. She alleges Justine and James are trying to sell her home.

The siblings have also accused one another of abusing their mother, making multiple calls to the police with allegations of violence and requests for welfare checks. In one report, the police noted that Diana is “easily influenced by whoever is taking care of her”.

Wishes ignored

Diana has found the way she’s been treated patronising. She hated living in the aged care home and said she was mistreated and denied freedom, told off for having a friend visit to watch TV with her.

“The food is not like home, it’s never fresh or good,” she said.

After a few months in residential aged care, she packed her bags and Rebecca picked her up.

Being able to access just $150 a week has had a huge impact on her life. Her money has also been moved by the public trustee from the bank account she has had for her entire life into a new account at a different bank, but she hasn’t been provided with paperwork to show where her money has gone — or why it was moved.

“They say I can’t go to the chemist [to buy my medicines] because I don’t understand money … but I understand everything,” she said. She has about $200,000 in savings and owns her home.

Fighting the guardianship order has also been a burden. Not only has it caused conflict between her children, but Rebecca has had to pay for specialists to assess Diana. One doctor recommended she undergo scans and blood tests to further test for dementia, but Diana doesn’t believe she should have to. She’s had enough with doctors and courts. 

“It’s not right,” she said. “I’m in a big depression because of this … I want my life back.”

For legal reasons, please don’t identify yourself or others under guardianship or financial administration in the comments.