Should guardianship orders be abolished?

This article is part 11 in a series. For the full series, go here.

Some readers may find aspects of this article distressing.

Across this series, Crikey has identified problems with the states’ administration and guardianship systems, from ignoring families’ wishes about medical care to charging astronomic fees to difficulties having guardianship orders revoked. 

But that’s not to say the public guardian and public trustee shouldn’t exist. Rather, recommendations from extensive reviews should be implemented, and greater accountability and transparency around the services provided is needed. 

Do guardianship and trustee orders have a place in society? 

Most Australian guardianship legislation has been around since the 1980s and in some states, such as New South Wales, has not been updated. But Professor emeritus at Sydney University Law School Terry Carney says the first guardianship laws date back to the 1850s. 

“It was terribly paternalistic and oppressive, and the sole objective was to conserve the person’s money for their inheritance,” he said. 

For guardianship orders to be made it must be proved that the person doesn’t have capacity to make decisions and that there is a “strong, urgent and immediate” need to make the order, Carney says. 

“The public trustee is supposed to be a last resort, but there are many complaints that the trustee is big, bureaucratic and impersonal,” he said. 

The United Nations has called for guardianship orders to be abolished. But La Trobe University disability researcher Professor Christine Bigby, who advocates for supported decision-making to be implemented across guardianship divisions, tells Crikey that was an extreme stand.

“There is a counterargument that it is a safeguarding mechanism subject to review and scrutiny, and the action of the guardian is monitored,” she said. 

Informal guardians, such as family members, aren’t subject to the same kind of scrutiny, Bigby says. Instead of presuming people don’t have capacity, this presumes people have support in place to enable capacity and help grow their independence. 

EveryAGE Counts senior policy adviser Sue McGraw says guardianships are necessary in social systems, but they needed to be based on human rights legislation. The only state that takes this approach is Victoria. 

How well resourced are they?

One of the major problems with the offices of public guardians and public trustees is that they are poorly resourced. 

Victoria’s public trustee has 395 full-time equivalent staff managing 12,000 clients and their assets with an average of 30 cases each. Queensland has 600 staff and 10,000 clients.

NSW State Trustee and Guardian, which manages clients under both care and financial administration management, has 558 staff, 12,100 trustee clients and almost 3000 people under guardianship orders. The number of people represented by the public guardian has increased by more than 37% in the past five years.

As for guardianship offices, Victoria has 85 full-time equivalent staff managing 1792 clients, Queensland has 93 staff managing 3600 clients — an average of 37 clients each staff member — and Tasmania has just 9 staff managing 310 clients. These staff also work for the Office of the Public Advocate and have other responsibilities. They also work after hours to provide emergency and crisis services, as do volunteers for the public advocate.  

The staff visit clients under guardianship orders to assess their well-being and living situations. While COVID-19 has disrupted in-person visits, limited staffing levels mean visiting everyone isn’t possible. 

Former NSW acting public guardian Justine O’Neill, who left the role in 2018, says that when she left the workload was incredibly high, and: “I have no reason to believe it would be any lower today.”

Concerned families and people under administration can lodge a complaint with the public trustee, office of the public advocate and the ombudsman, but as this Crikey investigation has revealed, responses are often slow or are simply referred back to the trustee or guardian. 

The NSW State Trustee and Guardian received 408 complaints last year, most dealing with a deceased estate, financial management and guardianship, and most of which were found to be unsubstantiated and finalised. Nearly 20,000 issues were raised with the Queensland Public Guardian, most of which were closed within 90 days; 65 official complaints were logged, most of which were resolved with an explanation. Queensland is the first state to implement a consumer advocate to help manage the concerns. 

Is change afoot? 

There has been a number of reviews and inquiries into offices of the public guardian and public trustee, but not a lot of reform. 

In NSW a 2018 review of the Guardianship Act recommended widespread legislative reform, but just eight of the 35 recommendations were supported by the government in full. The Queensland Public Trustee was subject to a damning review by then public advocate Mary Burgess earlier this year, but has implemented just 11 of her report’s 32 recommendations. It rejected seven and plans to implement the other 14. 

An independent review of Tasmania’s public trustee is under way. In 2018, Victoria’s state trustee’s pricing model underwent a complete transformation resulting in price reductions for services. 

In 2014 the Australian Law Reform Commission said guardianship and administration laws needed to be reviewed to ensure they were used only as a last resort and subject to accessible mechanisms for review. 

The Northern Territory, which has the highest number of people under guardianship order per capita, is revising its legislation to fit into a human rights framework with Aboriginal Territorians representing 57% of those under guardianship orders. 

The disability royal commission is not looking into the role of public trustees and guardians. 

The Australian Guardianship and Administration Council, which represents state and territory trustee and guardianship government agencies, tells Crikey those making decisions for people under administration orders do so under national standards. 

“Australian states and territories are progressively working towards adopting supported decision-making frameworks,” it said, and added that one of the best ways people could protect themselves was to make an enduring power of attorney or guardianship and write a will with their choices for when and if they lose capacity to do so.

“Public advocates and public guardians, whether as advocates, investigators or guardians, seek to promote the interests of persons with a decision-making disability and to protect them from abuse, neglect or exploitation,” it said.

Victoria’s public trustee said: “We do not claim to be perfect or that our work improving services for clients is complete.”

Society is judged by how it treats its most vulnerable. As this investigation has revealed, although guardianship and administration orders protect against abuse and harm there are major flaws in the way the system is run, sometimes putting those under administration in much worse situations than they were previously. 

As chief executive officer for Aged and Disability Advocacy Australia Geoff Rowe told Crikey: “For a system that’s designed to protect people, at times it misses the mark and it misses the mark quite poorly.”

To read more pieces in this series, go here.

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