This is the latest instalment in Crikey’s investigative series Kidnapped by the State. For previous instalments, go here.
It’s supposed to be a last resort: a guardianship order made to give an advocate, family member or state representative the power to make decisions on behalf of someone, once a tribunal rules they no longer have that capacity.
But as the disability royal commission has heard this week, the orders are routinely being used due to time shortages, a misunderstanding of the system, or simply to plug gaps. The commission heard that those appointed as decision-makers lack the training, knowledge and time to properly represent people under guardianship and financial administration orders.
A public trustee manages a person’s finances, often deciding whether to sell a person’s home and how much money they can withdraw from their bank accounts each week. But Victorian man Uli Cartwright was placed under financial administration simply because staff members at his group home were concerned about the amount of money he spent on games. He was a teenager at the time.
“My rent and bills were paid,” he told the commission. A GP made the decision that he couldn’t manage his finances, despite agreeing he was capable of managing his medicines and other affairs.
Cartwright said no one informed him about the decision. “I don’t recall ever being told about the hearing and I did not attend the hearing,” he wrote in his submission. “I was never given the opportunity to have my voice heard … Instead [in] the whole process I was silenced.”
Not understanding tribunal processes has been a common theme of this week’s hearings. In NSW, people with a psychiatric or intellectual disability make up two-thirds of those represented by the public trustee and public guardian.
People are rarely given information prior to the tribunal processes. Victorian State Trustees executive general manager Josie Brown told the commission people could access an online brochure or browse their website.
As revealed in Crikey’s investigation, people who have bedside tribunal hearings — virtual and often brief hearings to place a guardianship order — often have no idea it’s taking place.
Austyn, who gave evidence under a pseudonym due to strict gag orders placed on those under guardianship orders, is a First Nations woman who tried to reconnect with her brother, Howie (also a pseudonym), who has a physical and cognitive disability from birth. She said National Disability Insurance System (NDIS) service providers limited her access to her brother before applying for a guardianship order to be put in place. Austyn was supposed to be informed about the tribunal hearing in order to give evidence. Instead, she wasn’t told.
It’s not just those placed under state control who don’t understand the system. Staff working for the public guardian and public trustee are rarely trained to help understand the wishes of their clients (or “customers”, depending on which representative is speaking).
Brown was asked whether senior management in Victoria’s office of the public trustee has formal training in working with people with disabilities, which they haven’t. Some employees were given training, but none was conducted by people with disabilities. It was a similar response from NSW Trustee and Guardian estate management director Deborah Simpson.
“Isn’t that the fundamental problem?” commission chair Ronald Sackville asked.
Dr Colleen Pearce is Victoria’s Public Advocate, acting as the “guardian of last resort” for adults with disabilities. Guardianship orders are put in place for a limited amount of time and are generally reviewed annually. But, she said, the NDIS was complicating things as guardians struggled to understand and implement funding plans, dragging out the guardianship order.
Victoria has introduced “self-revoking” guardianship orders, which expire without the need for a tribunal hearing. She said the state needed to use these more to address tribunal backlogs, and believes it’s not just guardianship orders that need reform but the entire mental health sector.
For legal reasons, please don’t identify yourself or others under guardianship or financial administration in the comments.
Sell your house, spend it all ‘looking after’ you. Lock you up when the money is gone. Bureaucracy does NOT care. So don’t have an accident.
And don’t get old.
Sometimes. But in my experience Guardianship orders are designed to protect vulnerable disabled/aging people from their own unscrupulous rellies, ‘loved ones’ and ‘carers’. Especially since the arrival of the NDIS ATM. Not so much ‘Hijacked by the State’ as rescued by it. Sometimes, anyway. This series could prolly do with a bit more scepticism of ‘victim’s stories’; especially those being told by someone other than the victim themselves.
A scenario I’ve seen quite a few times is where an aging parent is rattling around in a massive bit of now-prime real estate – family home bought in 1920 for five quid, now worth $4mil, etc – in an increasingly demented and fragile way, ie desperately needing to move into supervised living/care. Said oldie has ample resources to do so – in luxury, with a peer group, vibrant social life, in-place clinical and personal care – but it would of course require bonding, reverse-mortgaging or selling the kids’ (and grand-kids’) inheritance. And/or would involve in-place (lucrative) care provision becoming redundant. So you get a lot of resistance from the existing status quo, and it’s usually on precisely the ‘autonomy’ and ‘independence’ grounds cited in the examples here. Adult kids who pretend to be helping with care of ‘beloved’ mum/dad…but are really neglecting them, and often abusing them, too.
Sometimes the hostility and accusations directed at the GT are just those of vested interests who stand to lose a financial stake.
sorry, that chould have read: ‘…but in my experience Guardianship orders are JUST AS OFTEN designed to protect vulnerable disabled/aging people…’ etc
Both sentences are incontrovertible.
Inherited wealth, especially combined with primogeniture, is the curse of civilisation.
Bring back Death Duty – preferably starting at 150% and increasing significantly with each extra zero.
Agreed. Unearned wealth is a shocking corrupter.
That is a rare scenario if you include the prospect of “in luxury, with a peer group, vibrant social life, in-place clinical and personal care.”
Many oldies are rightly terrified of going into residential care. And the RC validated their apprehension. The level of fees is not a good index of care.
At the lower socioeconomic-economic end, no real argument. And yes, many middle class oldies are ‘terrified’ of ‘moving into care’ too – but IMO only some are ‘rightly’ so. There are a growing number of very well appointed resort-style aged and independent living options around, and most of them are financially fairly accessible to any older person who’s spent a lifetime in the workforce and owns a family home in a middle-class urban area.
What I suspect many Boomer oldies at least are ‘terrified’ of is having to offload their real estate assets and/or dip into their Super – as explicitly intended by the lifetime of tax subsidy they’ve enjoyed – to fund their retirement to a level they’ve come to expect.
It’s not just lower SES. Actually the not-for-profits catering more often for low-income clients fared better overall than PAYG private outfits. A lottery of glossy brochures.
If that’s so, I’d be interested in what methodologies and metrics the RC ‘s conclusions draw on. In my experience of caring across NFP homes, private ones and in-home caring for the very wealthy, self-reporting of care quality is very much in the eye of the beholder. Oldies in bare minumum places are often the least demanding and entitled (and the least able to contribute to things like RC’s), plus the most grateful of any help they get. The super-rich, who live in pampered luxury, are usually the ones who rip off the public/safety systems the most, and whine the loudest about how hard they’re done by while doing so.
Granted, huge generalisation. But broadly indicative of my point above about our collective narcissism. We all want everything, all the time, right now, for ourselves…and we don’t seem to want to have to pay for it, nor do our kids.
Here’s an idea, totally off the left field brainstorm wall – how about asset rich, time/health poor oldies contract a deferred payment/indenture with some young’uns?
They could move into their empty, echoing piles to look after them until ready for planting – any remaining funds could then be dispersed to the carers.
There used to be something like this for a couple of thousand years (so possibly not yet fully tested) that the oldies sit by the hearth, keeping the fire going, the soup from overboiling and the babies from eating hot coals while their descendants dealt with the outside world.
Whatever happened to that plan which seemed to work well?
This would my preferred model…a rolling, inter-generational contract, as it were. Seemed to work OK for a long time, yes.
Of course it requires adults of a certain age to gracefully concede that the world is no longer ‘all about them’. So naturally the model became redundant when the Boomers stole the future all for themselves, as teens. Prolly not really their fault. The advent of mass media geared solely towards them in their formative adolescence inspired a lifelong narcissism that they have passed on to us all.
Regardless of how often family is exploitative, the state should be held to a higher standard yet the system is set up to allow the state to be exploitative.
We’ll said.
I absolutely agree Jack, I have a son with mental health issues, the Trustee Guardian was recommended to me by his
case manager. My son was and still is not a good money manager. He’d spend the lot in one day. It was costing me a fortune to feed him, he doesn’t live with me. He’s bills are paid and he gets money in his account 3 days a week. If he needs anything like a fridge or washing machine he can ask for extra but I advised him to choose the thing he wants and they send the bill to the TG. TG forwards the payment to the store. It’s so good having the pressure taken away. And I was working full time, the stress was hell.
I must say though, I don’t have any problems with my other children. They are genuinely caring people. They care about their brothers welfare.
Last resort is now being changed to “no suitable alternative”