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.
The policy on guardianship is in the throes of moving to supported decision making rather than substitute decision making as the focus of any appointed guardian. The problems arise when guardians try to game the system. We have just had a RC into Aged Care Quality and Safety and the issues you have raised in these articles are the very ones identified by the RC as the ones causing most pain and grief to older people. The answer is to provide support to the older person to make their own decisions, retain autonomy and rights to the best quality of life available.
That’s all true. There are examples of good practice that should be emulated. (Several years ago BBC Radio broadcast a short series of excellent dramas based on the ethics in real life cases of medical treatment in circumstances where the patient’s capacity to consent was questionable, each time followed by a discussion of the issues with experts; it’s not quite the same, but still highly relevant. The series provided powerful and quite inspiring illustrations of what is possible in respecting the wishes of individuals even in very difficult circumstances).
Based on what has been revealed in Crikey there are various matters that should be addressed in Australia’s systems of guardianship and public trustees, but some or more obvious and potentially easier than others. It would be a good start to remove the blatant conflict caused by these systems being allowed or even encouraged to profit or take income at will from the assets of those they are meant to care for. Another obviously necessary step is to make everything open to public and independent scrutiny; the current insistence on operating almost entirely in secret is wholly unacceptable.
Fifteen years ago the Queensland Adult Guardian refused to release a client of mine’s money so he could go on a holiday.
TAG said he might need a wheelchair in the future.
He was in his early 30s at the time with no mobility issues or any reason to expect any in the future. His disability was a mild intellectual one- not a physical one.
My client did get his holiday, but only because he had support staff willing and able to fight for him .
I’d hoped the move to supported decision making had changed things, but it doesn’t sound like it. Supported decision making was a thing fifteen years ago, too.
As much as supported decision-making is touted by the various guardians and trustees nationwide, the sad reality is we have a system that has been created by the State, for the benefit of the State and the system will play a long game of wait and deflect to keep this abusive system running in the SUBSTITUTE decision-making form it really engages in.
The real story is the entrapment model that has been created by the State: the Trustees visiting the corridors of hospitals signing up vulnerable people to new legal documents, the bedside hearings undertaken whilst the ‘victim’ is heavily sedated and often without support present or the tribunal system, whereby Members, often from the legal fraternity handpicked by the Attorney General, as a default nominate their sister offices “Public Guardians” and “Public Trustees” as decision-makers. A tribunal that has the legal power to ignore evidence and act in any manner they see fit. Members that are immune from investigation and prosecution.
The tribunal and hearing process is the most abusive of all. The fact a system exists that can remove your decision-making rights in under half an hour, over the phone and does not follow the due processes of court rules, should frighten every Australian. Defamation and lies cannot be challenged as the arena is deemed ‘protective’.
The moment an order is made to ‘guardianise” a person, they lose their legal identity. They are in effect “dead under the law”. Their identity transfered to a State public servant who assumes their identity and makes decision, often in the interest of the State. The victim cannot seek media help as they are now deemed a ‘protected’ person.
From this point on, the Public Trustee uses the funds of the person under guardianship against them to fend off any legal process to against the orders. The Public Trustee can refuse the victim the right to use their own fund to legally fight back. The Public Trustee can liquidate estate, sell property, sell shares, disolve trusts,sell businesses and even apply for an involuntary separation froma spouse and divide joint tenancies.
The Public Guardian can remove a person from their home, limit access to anyone even a spouse, ignore end of life choices the person made whilst they had capacity and much more.
These Guardians and Trustees become YOU!
The appeals process is often long and tedious, many never entering a court. A court of appeal can only commence on questions of law and time and money is often against the victim and family. Even if the Judge hearing the matter is horrified by the facts(many are) their hands are often tied to letter of law. Justice and the law are two entirely different concepts.
Once captured, victims are often isolated, removed from their homes (as Trustees receive a nice capital commission in the process). Its common for the victim to be heavily sedated whilst the estate is fleeced in fees and other avenue by predatory public and now private administrators.
Victims start a complaints process (Politicians, Organisations, Professional Bodies) only to find the doors slam shut as often there are massive conflicts of interest with these bodies.
The whole purpose is to exhaust the victim into giving up, which is often the case.
Guardianship in Australia is a dangerous often silent abusive arena that now needs a nationwide PUBLIC inquiry and I believe many perpetrators in this arena need to be charged and arrested for crimes and abuses.
Kathy Hayne, an important matter not referred to is the reluctance of this quinella of Guardianship and the State’s Public Trustees (Tasmania) the latter is in reference to the nil reply to the correspondences from the next of kin… who have legitimate claims, that in a number of cases have been duped by Tasmania’s Public Trustees.
We have a mix of negative responses from the Guardianship Tribunal, then the non-attendance to correspondences by their symbiotic Public Trustees.
This gets to the heart of almost all of the concerns arising from within these 2 State government-sponsored institutions.
Notwithstanding the State’s supportive brotherhood of lawyers, that frequently fail to properly serve their clients.
As you are aware William, the whole guardianship system is a State sanctioned cartel designed to capture the decison-making powers of the victim in order to make money and save costs to the State(whilst billing the Federal Government).
Its racketeering!
Yes, racketeering is their game, however, all the State’s in Australia believe they have an immunity to civil prosecution. Yet this immunity dissolves if an allegation of a criminal act or acts becomes the matter for legal examination.
For example, an allegation of E.G. “a conspiracy to defraud” can become a case matter that can be best addressed through Australia’s Federal Court jurisdiction.
I am familiar with a case matter destined to be permitted its 1st Hearing in the Federal Court, a vital component necessary is a preponderance of rock-solid evidence, so much so that any claim of privilege or the simple denial of the alleged criminal act will not be acceptable.
This particular case matter will rely upon the old maxim that “no person, no organization, not even a corporation, or even a State government” is to be exempted if whoever among the above has committed a criminal offense.
The Federal Court ‘decision’ will rely heavily on the evidence presented, if the defendant offers an obstruction or pleads a legislated statute or a State government law or regulation their Statehood jurisdiction will not be accepted by a Federal Court as Australia’s Federal Law has the empowerment to overrule State Laws.
The hugely embarrassing loss of a State’s fidelity, and or its government’s credibility, is the likely outcome, providing there is no legerdemain or sleight of hand abnegation of the law as it stands in Australia.
What are the breakdowns of people under guardianship orders by gender and race? By socioeconomic status? Noting the NT’s high (57%) rate of First Nations people under these orders. Based on evidenced judicial bias towards white professional men, I wonder if guardianship is more likely to be applied to women, to less educated people, Aboriginal and Torres Strsit Islander peoples, people whose first language is not English….
An ILLUSION to a complaints process. Self-review and self-investigation are not true transparency and accountability. Where is the external oversight over State controlled or funded bodies?
Often the victim and the family are referred to one office then to another, on a merry-go-round. Then the complaint is dismissed. Families exhausted.
Examples I have seen:
How can an individual SUE the CROWN? How can an Individual INVESTIGATE the CROWN?
All these entities are interconnected either via funding, employment, employed by the State or professional organisational links.
See the picture!
Amber, thank you. As a person who is potentially very vulnerable to abuse such as you have described throughout these articles, I found your investigation simultaneously interesting, valuable and terrifying! I do not have the slightest hope that the situation will improve at all during the remainder of my life, though your exposure may shed a little more light on the situation also trigger some individual people into being able to prevent some of these horrors from engulfing them.