O'Neill, Nick; Peisah, Carmelle --- "Chapter 7 - The Functions and Powers of Guardians" [2011] SydUPLawBk 9; in O'Neill, Nick; Peisah, Carmelle (eds), "Capacity and the Law" (Sydney University Press, 2011)

Chapter 7 – The functions and powers of guardians

7. 1. Introduction

This chapter sets out the functions or powers given to guardians by legislation in some of the States and the Australian Capital Territory. It also discusses the functions or powers commonly given to guardians when they are appointed by tribunals as well as less commonly given functions or powers.

The chapter also discusses the duties of guardians and the matters that guardians are barred by legislation from appointing guardians to make decisions about. It suggests that those duties and matters legislated for in some States and the Australian Capital Territory apply equally to guardians in the other States and the Northern Territory where they are not legislated for.

7. 2. The function or powers given to guardians and the duties that go with them

The functions or powers that may be given to guardians are described by different words in the different legislation of the different States and Territories. In order to clarify the terms used in rest of the chapter, it is useful to set out the way in which those functions or powers are given by the relevant legislation.

7. 2. 1. New South Wales

In New South Wales, guardians are given functions. A plenary guardian has all the functions that a guardian has at law or in equity, while a limited guardian has one or more of those functions as set out in the order.^[1] In New South Wales, a plenary guardian has custody of the person under their guardianship to the exclusion of all others while a limited guardian has custody of the person under their guardianship to extent set out in the order.^[2] Both plenary and limited orders may contain conditions.^[3]

7. 2. 2. Victoria

In Victoria, guardians are given powers and duties. A plenary guardian has all the powers and duties a plenary guardian would have if they were a parent and the person under their guardianship were their child.^[4] A limited guardian has such of those powers and duties as are specified in the guardianship order.^[5] Nevertheless, some of these powers are set out in the Guardianship and Administration Act 1986 (Vic) as follows:

1. to decide where the person under guardianship is to live, whether permanently or temporarily,

2. to decide with whom that person is to live,

3. to decide whether that person should or should not be permitted to work and, if so, the nature or type of work, for whom they are to work and related matters,

4. to consent to any health care that is in their best interests , subject to limitations on this power elsewhere in the Act, and

5. to restrict visits to them to the extent necessary in their best interests and to prohibit visits by any person if the guardian reasonably believes that such visits would have an adverse effect on the person under guardianship.^[6]

7. 2. 3. Queensland

In Queensland guardians may exercise power for a personal matter, that is make all decisions about the personal matter “and otherwise exercise the power”. They may, to the extent authorised by the order appointing them, do anything in relation to a personal matter that the person under guardianship could do if they had capacity.^[7]

The statutory list of personal matters that Queensland appointed guardians may make decisions about is not exhaustive. It contains the first four powers in the Victorian list, and the fifth power in the Victorian, the access power, has been held to be a “personal matter” in Queensland.^[8] The Queensland list also includes:

1. deciding whether the person under guardianship applies for a licence or permit,

2. day-to-day issues, including, for example, diet and dress,

3. deciding whether to consent to a forensic examination of the of the person under guardianship

4. making decisions about a legal matter not relating to their financial or property matters.^[9]

The statutory “functions and powers” of guardians in Queensland will be returned to later in this chapter as those provisions set out responsibilities and duties of guardians that are relevant to guardians in the other States and Territories.^[10]

7. 2. 4. Western Australia

In Western Australia guardians are given functions. A plenary guardian has all the functions in relation to the person under their guardianship that are, under the Family Court Act 1997 (WA), vested in a person in whose favour has been made:

1. a parenting order which allocates parental responsibility for a child,

2. a parenting order which provides that a person is to share parental responsibility for a child,

as if the person under their guardianship were a child lacking in mature understanding. However, a plenary guardian does not have the right to chastise or punish the person under their guardianship.^[11] A limited guardian has one or more of the functions of a plenary guardian that are set out in the guardianship order.^[12]

As in Victoria, some of these powers are set out in the Guardianship and Administration Act 1990 (WA). The first four functions are the same as the first four powers in Victoria, but Western Australian guardians have, as plenary guardians, or may be given as limited guardians, the following functions:

1. to decide what education and training the person under their guardianship is to receive,

2. to decide with whom that person is to associate,

3. as the next friend of that person, commence, conduct or settle any legal proceedings on their behalf, except proceedings relating to their estate, and

4. as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the person under their guardianship, except proceedings relating to the estate of that person.^[13]

These functions, together with the Victorian powers, will be discussed later in the chapter as they are functions that, with reservations in some cases, may be exercised in at least some of the other States and Territories.^[14]

Also, the Guardianship and Administration Act 1990 (WA) sets out a list of things a guardian cannot do.^[15] This issue will be discussed later in the chapter.^[16]

In Western Australia if an occupier or a person in charge of premises refuses to allow the guardian to enter those premises where the person under their guardianship is present, the guardian may apply to the State Administrative Tribunal (WASAT) for a warrant to enter those premises in order to perform any function in relation to the person under their guardianship or to discover whether the person under their guardianship is on those premises.^[17]

7. 2. 5. South Australia

In South Australia, guardians are given powers. A guardian with full powers has all the powers that a guardian has at law or in equity, while a limited guardian has one or more of those powers as set out in the guardianship order.^[18] In addition, the Guardianship Board may direct that the person under guardianship live with a specified person or in a specified place or it may empower the person’s guardian to make decisions about the placement or detention of the person under their guardianship.^[19] This matter is taken up later in the chapter.^[20]

7. 2. 6. Tasmania

In Tasmanian legislation is virtually identical with the Victorian Act. It provides that guardians have powers and duties. A “full” guardian has all the powers and duties which a full guardian would have in Tasmania if they were a parent and the person under guardianship were their child.^[21] A limited guardian has such of those powers and duties as are specified in the guardianship order.^[22] Some of these powers are set out in the Guardianship and Administration Act 1995 (Tas).^[23] They are the same powers as are set out in the Guardianship and Administration Act 1986 (Vic).^[24]

7. 2. 7. Australian Capital Territory

In the Australian Capital Territory, guardians are given powers, namely the powers that the ACT Civil and Administrative Tribunal (ACAT) is satisfied are necessary or desirable for the guardian to have in order to make decisions for the person under guardianship in accordance with the decision-making principles.^[25] Again, as in Victoria, Western Australia, Tasmania and the Northern Territory, some of the powers of a guardian are set out in the Guardianship and Management of Property Act 1991 (ACT) The first five of these are effectively the same powers as those set out in the Guardianship and Administration Act 1986 (Vic).^[26] The final power is to bring or continue legal proceedings for or in the name of the person under guardianship.^[27]

Also, the Guardianship and Management of Property Act 1991 (ACT) sets out a list of powers that a guardian cannot be given.^[28] This list will be set out and discussed later in the chapter.^[29]

As already noted in Chapter 6, the Public Advocate has an obligation, if appointed as the guardian, to endeavour to find a suitable (private) person to be appointed as the guardian of the person under the Public Advocate’s guardianship. If such a suitable person is found, the Public Advocate is required to apply to ACAT for the appointment of that person as guardian.^[30]

7. 2. 8. Northern Territory

In the Northern Territory, following the Victorian model, guardians are given powers and duties. A “full” guardian has all the powers and duties which a full guardian would have if they were a parent and the person under guardianship were their infant child.^[31] Under a conditional order, a guardian has such of those powers and duties as are specified in the order.^[32] Again, following the Victorian model, some of the powers of a guardian are set out in the Adult Guardianship Act 1988 (NT).^[33] They are the first four powers that are set out in the Guardianship and Administration Act 1986 (Vic).^[34]

7. 3. Duties and responsibilities of guardians

When an adult person accepts an appointment a guardian they take on a set of duties and responsibilities that are either found in the legislation of the State or Territory they are appointed in or are likely to be held to be applied to them as a matter of common law. These duties and responsibilities are set out below.

7. 3. 1. Guardians must apply the legislative principles

Guardians must apply the general principles set out in the legislation under which they are appointed, including any relevant more particular principles.^[35] For example, in Queensland, if given powers in relation to health matters, they must apply the health care principle.^[36]

7. 3. 2. Guardians must act honestly and with reasonable diligence

Guardians must exercise their functions or powers honestly and with reasonable diligence to protect the interests of the person under their guardianship. This is stated in terms in the Queensland Act, but applies to guardians in all States and Territories.^[37]

7. 3. 3. Guardians must act in the best interests of the person under their guardianship

This central aspect of a guardian’s duty or responsibility is stated best in the Western Australian Act, following on from the Victorian Act, but it applies to guardians wherever appointed. Guardians are required, subject to any direction given to them by the body appointing them, to act according to their opinion of the best interests of the person under their guardianship.

While their obligations as guardians may extend beyond this in particular cases, guardians act in the best interests of the person under their guardianship if they act as far as possible:

1. as an advocate for the person under their guardianship,

2. in such a way as to encourage that person to live in the general community and participate as much as possible in the life of the community,

3. in such a way as to encourage and assist that person to become capable of caring for themselves and of making reasonable judgments in respect of matters relating to their person,

4. in such a way as to protect that person from abuse, exploitation or neglect,

5. in consultation with that person, taking into account, as far as possible, their wishes, as expressed, in whatever manner, or as gathered from their previous actions,

6. in the manner that is least restrictive of the rights, while consistent with the proper protection, of that person,

7. in such a way as to maintain any supportive relationships that that person has, and

8. in such a way as to maintain that person’s familiar cultural, linguistic and religious environment.^[38]

The Victorian, Tasmanian and Northern Territory Acts set out the best interests responsibilities of guardians in the same way. They refer to the first five actions set out above and state that a guardian must act (at all times in Tasmania) in the best interests of the person under guardianship.^[39]

The New South Wales Act imposes a clear obligation on guardians to give paramount consideration to the welfare and interests of those persons under their guardianship.^[40]

While the advocacy role of a guardian is not stated in terms as being part of a guardian’s duties in the other States and the Australian Capital Territory as it is in Victoria, Western Australia, Tasmania and the Northern Territory, it is understood as an obligation implied into every function or power given to a guardian that the guardian may advocate as appropriate for the person under guardianship in relation to that function or power.

The Guardianship Board of Western Australia and it successor, WASAT, both recognise that the role of a guardian includes not only the making of decisions but also acting to assert and protect the rights and interests of those under guardianship against third parties and making representations on their behalf and that this is consistent with the obligation of guardians to act in the best interests of those under their guardianship.^[41]

7. 3. 4. A guardian’s obligations and the views of the person under guardianship

This question is discussed in relation to tribunals in Chapter 6. 11. 5.

In New South Wales guardians are under a duty to take the views of the person under guardianship into consideration, but they are not bound by them.^[42] The guardian must give paramount consideration to the best interests of the person under guardianship.^[43] In Victoria, Western Australia, Tasmania and the Northern Territory this obligation is an element of acting in the best interests of the person under guardianship. The person under guardianship must be consulted and their wishes gathered either from current expression or from previous actions.^[44] Those wishes are to be taken into account, as far as possible. However, there are extra provisions in Victoria, Tasmania and the Northern Territory which will be returned to shortly.

The effect of the New South Wales and Western Australian provisions is that guardians are substitute decision-makers for the people under their guardianship. Their role is not to make substituted judgments but to consider or take into account the views of the person under their guardianship and, having done so, to make decisions in the best interests of those persons, but without being bound by their views.

In Victoria, Tasmania, the Northern Territory the obligations of guardians when carrying out their powers and duties come from two sources. The first being a general principle applying when any function, power, authority, discretion, jurisdiction and duty conferred or imposed by the relevant Act is being exercised or performed so that:

1. the means which is the least restrictive of the person with a disability's freedom of decision and action as is possible in the circumstances is adopted,

2. the best interests of that person are promoted, and

3. the wishes of that person are, wherever possible, given effect to. ^[45]

In 1989 Hart J sitting in the Victorian Administrative Appeals Tribunal held that the requirement to promote the best interests of the person with the disability prevailed over the other two requirements.^[46]

The second is a specific direction to guardians requiring them to act in the best interests of the person under their guardianship.^[47] However, they are told that they act in the best interests of the person under their guardianship if they act, wherever possible and among other things, in consultation with that person taking into account, as far as possible, the wishes of that person.^[48]

Despite the different wording in the relevant legislation, and the internal conflict between the provisions within them, the effect of the Victorian, Tasmanian, the Northern Territory provisions is the same as those in New South Wales and Western Australia, namely that guardians are substitute decision-makers for those under their guardianship. Their role is not to make substituted judgments where to do so would be to act contrary to the best interests of those under their guardianship, but to consult with and take into account the views of the person under their guardianship and, having done so, to make decisions in the best interests of those persons without being bound by their views.

The relevant legislation in Victoria, Tasmania, the Northern Territory contains a specific section setting out how guardians are to exercise their authority. That section states that they must act in the bests interests of those under their guardianship and advises them that they do so, among other things, by consulting with that person and, as far as possible, taking into account their wishes.^[49] Because it applies specifically to guardians, it must prevail, in relation to them, as a matter of statutory interpretation, over the general provision which requires that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by the relevant Act is to be exercised or performed so that the wishes of the person under guardianship are, wherever possible, given effect to. This is particularly so because the same general provision also requires guardians to exercise their powers or perform their duties so that the best interests of the person under their guardianship are promoted.^[50]

Those two obligations are sometimes in conflict; however they are resolved in the section which sets out how guardians are to exercise the authority given them by the order appointing them. In this regard it should be noted that each year in Australia, a number of people with decision-making disabilities have guardianship or administration orders made in relation to them as the evidence shows they need such orders in part at least because they lack insight into the problems confronting them and demonstrate this by expressing views which, if given effect to, would be seriously detrimental to their own interests. For example, people with dementia often deny they have problems managing at home. They may forget that they have had falls and/or deny they have medical problems or need medication. Often they ask to be “left alone”. To heed these wishes would be to expose them to risk and neglect which would be detrimental to their own interests.

Furthermore, the long established common law policy behind the protective jurisdiction of the Australian Supreme Courts is that of protecting incapable adults and promoting their best interests because of their inability to do those things on their own behalf, despite their ability to express opinions. For all these reasons it is suggested that the relevant legislation in Victoria, Tasmania, the Northern Territory is not intended to be read as importing the requirement of substituted judgment to prevail over a guardian’s obligation to act in the best interests of the person under their guardianship, disregarding their views when necessary.

Guardians in Queensland are in a similar, but not identical, situation. They must recognise and take into account the right of the person under guardianship to participate, to the greatest extent practicable, in decisions affecting their life, including the development of policies, programs and services for them. Guardians must also take into account the importance of preserving, to the greatest extent practicable, the right of those under their guardianship to make their own decisions. Consequently, they must give those under their guardianship any necessary support and access to information, to enable them to participate in decisions affecting their lives and, to the greatest extent practicable, seek and take into account the views and wishes of those under their guardianship. Also, when performing a function or exercising a power a guardian must do so in the way that is least restrictive of the rights of the person under their guardianship.

Furthermore, Guardianship and Administration Act 2000 (Qld) provides that guardians must use the principle of substituted judgment, but in a limited way only. If it is reasonably practicable to work out what the views and wishes of the person under guardianship would be from their previous actions, or from their views and wishes expressed orally, in writing or in another way, including by conduct, then a guardian must take into account what they consider would be those views and wishes. Nevertheless, guardians must perform their functions or exercise their powers in a way that is consistent with the proper care and protection of those under their guardianship.^[51]

This means that substituted judgment is not to trump the requirement that guardians, when performing their functions or exercising their powers under the orders appointing them, must do so in a way that is consistent with the proper care and protection of those under their guardianship. If the position were otherwise, it would be pointless appointing guardians in Queensland for adults with proven impaired capacity who were nevertheless articulate and stating that they wished to continue with activities that were inconsistent with their the proper care and protection.

In the Australian Capital Territory the wishes of the person under guardianship, as far as they can be worked out, must be given effect to, unless making a particular decision in accordance with those wishes is likely to significantly adversely affect the interests of the person under guardianship. Even if giving effect to that person’s wishes is likely to significantly adversely affect their person’s interests, the guardian must, nevertheless, give effect to those wishes as far as possible without significantly adversely affecting the interests of the person under guardianship. It is only when those wishes cannot be given effect to at all that the guardian can (and must) act, in a way unencumbered by those wishes, to promote the interests of the person under their guardianship.^[52]

Through these provisions, the Guardianship and Management of Property Act 1991 (ACT) puts substituted judgment before best interests placing guardians in the Australian Capital Territory in the difficult position of either standing by while people under their guardianship with impaired decision-making capacity suffer unnecessary detriments to their interests or ignore the clear words and intention of the Act and step in to prevent this happening.

In South Australia when making decisions about the person under guardianship, guardians must, as the paramount consideration, give consideration to what, in the guardian’s opinion the wishes of the person under guardianship would be in the matter if they were not mentally incapacitated. Guardians are required to do this only to the extent that there is reasonably ascertainable evidence on which they can base such an opinion.^[53] However, they must seek and consider the present wishes of the person, unless it is not possible or reasonably practicable to do so.^[54]

The South Australian requirement divides into two parts. Under the first part it requires guardians to gather evidence, if they can, of the views of the person under their guardianship. Then, from that evidence, consider, as the paramount requirement, what the wishes of the person under their guardianship would have been in relation to the matter to be decided if they had not been mentally incapacitated. What appears to be required is the ascertainment of the pre-incapacity views of the person under guardianship. Where the pre-incapacity views of the person under their guardianship are not discoverable, this requires an element of guesswork on the part of the guardian as to those views, but does not appear to require the guardians to make substituted decisions to give effect to any presumed views.

The second part requires the guardian to obtain the current wishes of the person under their guardianship about the matter to be decided, unless it is neither possible nor reasonably practicable to do so, and to give consideration to, but not be bound by those wishes.

7. 3. 5. Guardians must act as required by terms of the order appointing them

Guardianship orders may contain functions or powers stated in standard terms or in terms drafted to meet the particular needs of the person under guardianship. They may contain conditions or be subject to directions. Consequently, when exercising their functions or powers, guardians must exercise them as required by the terms of the order appointing them.^[55]

7. 3. 6. The legal effect of actions taken and decisions made by guardians

Any action taken, decision made, consent given, document executed or thing done by a guardian in the performance of the functions vested in them by the order appointing them or implied from or ancillary to that order has effect as if it had been taken, made, given, executed or done by the person under guardianship and that person was of full legal capacity. This point is specifically made in the relevant legislation in New South Wales, Tasmania, Victoria, Western Australia and the Northern Territory.^[56] However, it is stated a little differently in the Australian Capital Territory where any act or omission of a guardian under the Guardianship and Management of Property Act 1991 (ACT) has effect as if it were an act or omission of the person under guardianship and that person was of full legal capacity.^[57]

The approach in the Guardianship and Administration Act 2000 (Qld) is different. When it is necessary or convenient to exercise a power, a guardian may sign a document as guardian and the document is as effective as it would have been if it had been signed by the person under guardianship with capacity to sign the document. Also, the guardian may exercise any of the powers given in the guardianship order in their own name. If a guardian does this, their action is as effective as if it had been done in the name of the person under guardianship. This implies that a guardian, in taking action under the guardianship order appointing them, acts with the same effect as the agent of the person under guardianship with full authority to take the actions they have taken.^[58]

The Guardianship and Administration Act 1993 (SA) does not deal with the question, but a guardian appointed by the South Australian Guardianship Board stands in the shoes of the person they are appointed to make decisions for and their decisions are, in effect, decisions of the person under their guardianship.

The legal and practical effects of the decisions and actions of guardians on behalf of the person under their guardianship help explain why guardians are subject to a range of obligations and responsibilities placed on them.

7. 4. Restrictions on the functions or powers of a guardian

While tribunals and courts in Australia have wide powers to make guardianship orders, it does not follow that they have the power to appoint guardians as substitute decision-makers for every area of personal decision-making. Some matters are so personal, such as the decision to marry, or are such a personal right that they may be exercised only by the person themselves and are lost if the person loses capacity to exercise it, for example the right to vote in an election. This issue has been recognised in Western Australia and the Australian Capital Territory where there are statutory restrictions that preclude a guardian from doing certain things. In the Australian Capital Territory these are:

1. the power to discipline the person under their guardianship:

2. to vote in an election for the person under their guardianship,

3. to make a will or other testamentary instrument for the person under their guardianship,

4. to consent to the adoption of a child on behalf of the person under their guardianship,

5. to give a consent to a marriage on behalf of the person under their guardianship,

6. to give a consent required for a prescribed medical procedure for the person under their guardianship.^[59]

In Western Australia guardians of adults are specifically denied the right to chastise or punish the person under their guardianship. The other things they cannot do are expressed in similar terms to those in the Australian Capital Territory Act. ^[60]

There have been decisions by the Supreme Court of New South Wales and VCAT indicating a reluctance to extend the range of the powers and functions of guardians so that may make substitute decisions for those under their guardianship in relation to matters arising in the course of criminal proceedings or related proceedings. Underlying this reluctance is the view that such decisions are for the accused or convicted person alone, regardless of their capacity to understand the issues involved and make a reasonable judgments in relation to them.^[61]

It is suggested that in the other States and the Territories, guardians cannot do or make substitute decisions about these matters either.

As will be seen in Chapters 12 and 15, there are special legislative provisions relating to sterilisation and selected other kinds of medical treatment that either prevent or circumscribe a guardian’s capacity to act as a substitute decision-maker in relation to those treatments.

7. 4. 1. No power to discipline person under guardianship

Only in New South Wales can guardianship orders be made for those who are still minors namely those who are at least 16 years but not yet 18 years of age.^[62] In the other States and Territories the legislation applies to those who are 18 years and above. It is not appropriate for a guardian to discipline another adult. Guardianship is not that kind of relationship. Also, a guardian who disciplined a person who was under their guardianship would be acting contrary to the principles set out in the guardianship legislation throughout Australia and contrary to the principles stated in or the policy behind all the recent legislation in Australia relating to people with disabilities. The view of the courts has long been that the jurisdiction exists for the benefit of the incapable person.^[63] To accept that a guardian could be empowered to punish or to authorise others to punish the person under their guardianship, would be contrary to the history of the jurisdiction.

7. 4. 2. No power to vote in an election for the person under their guardianship

The right to vote is a right given expressly by legislation, according to the terms of that legislation. Subject to arguments about constitutionality in the Commonwealth at least, the right can be removed or denied by that legislation. The Commonwealth Electoral Act 1918 (Cth) provides that a person who, by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting is not entitled to have their name placed on or retained on any roll or to vote at any Senate election or House of Representatives election.^[64] The right is personal and cannot be transferred to another person.

7. 4. 3. No power to make a will or other testamentary instrument for the person under their guardianship

As noted in Chapter 4, a person must have will-making capacity before they can make a will. They must meet the test in Banks v Goodfellow.^[65] Also as noted in Chapter 4, in each State and Territory the Supreme Court may grant leave to any person to apply to the Court for it to make, alter or revoke a will, in the specific terms approved by the Court.^[66] While statutory wills to be made, they may be made only by the processes administered by Supreme Courts. The power to make them is not given to guardians. Except as varied by the legislation allowing for statutory wills, the right to make a will is personal and cannot be transferred to another person.

7. 4. 4. No power to consent to the adoption of a child on behalf of the person under their guardianship

Again, adoption is a matter covered by State and Territory legislation, and principles relating to the best interests of the child being considered for adoption. Adopting a child imposes great responsibilities and obligations on the adopting parent. Because of these considerations, adoption is not something that a substitute decision-maker can consent to on behalf of another person.

7. 4. 5. No power to consent to a marriage on behalf of the person under their guardianship

If a person lacks the capacity to consent to marry, that is the end of the matter, no court, tribunal or substitute decision-maker can consent, on their behalf, to a person lacks the capacity marrying.^[67]

7. 5. The functions/powers of guardians

7. 5. 1. Advocacy

As already noted, in Tasmania, Victoria, Western Australia and the Northern Territory, advocating for the person under guardianship is set out in the relevant legislation as one of the ways of acting in the best interests of the person under guardianship.^[68] In any event, guardians are expected advocate in the best interests of those under their guardianship in relation to the matters they are given the function or power to make decisions about. Nevertheless, it is sometimes necessary to appoint a guardian with a specific advocacy function.^[69]

7. 5. 2. Accommodation

In Queensland, Tasmania, Victoria, Western Australia, the Australian Capital Territory and the Northern Territory, plenary guardians or limited guardians given the authority by the relevant tribunal or court may decide where the person under their guardianship is to live.^[70] In New South Wales guardians have this function and in South Australia guardians have this power because it is a function or power that a guardian has at law or equity.^[71] The power to make this decision is very frequently given to guardians.^[72]

The view taken in New South Wales at least is that the giving of this function to a guardian authorises them to decide where the person under guardianship is to live and for either them or others acting under their direction to take the person to that place of residence and to keep them safely there. This form of the accommodation function allows guardians, family-member carers or paid service providers to use normal practices to keep the premises appropriately locked and to provide safe boundaries to the property. This includes introducing complex gate opening devices aimed at preventing children, people with dementia or people with other forms of cognitive impairment either entering unsafe parts of the property or leaving the property unsupervised when they lack the capacity to look after their own safety. The exercise of this form of the function also allows nursing and other staff in hospitals, aged care facilities and similar places where accommodation, day care and associated support services when they are providing services to people with decision-making disabilities to use normal nursing techniques of diversion and engagement of the person to draw them away from situations in which they may inappropriately or unsafely leave the premises. Should such people leave the premises, their carers can guide, direct or help them back to the premises where they are being cared for. They may use methods which may involve touching, but not the use force. Common sense, acting in the best interests of the person to protect them from harm and to preserve their dignity is required in these circumstances.

If a person for whom a guardian is being or has been appointed cannot be kept at a place of accommodation without the guardian and those responsible for the person’s care and safety having greater authority to control the person, the guardian can be given a stronger form of accommodation function or power in the order appointing them and giving them their functions and powers. However, this order must be explicit as to the extent of the function or power it gives. Also, the function or power may be given only if it promotes the best interests of the person under guardianship.

The form of order used in New South Wales empowers the guardian to authorise others to take the person under guardianship to a place of accommodation, to keep them there and to bring them back to that place of residence should they leave it. This is authorised by the Guardianship Act 1987 (NSW) which provides that the guardian, a person authorised by the guardian or particular persons or a class of persons specified in the order may be empowered to take such measures or action as are specified in the order so as to ensure that the person under guardianship complies with the decision of the guardian.^[73] Any of them who takes any measure or action specified in the order in the reasonable belief that they are empowered by the order to do so and the measure or action is in the best interest of the person under guardianship and it is necessary or desirable in the circumstances to take that measure or action, the person doing so is protected from legal action.^[74]

In a 2003 case, the then Queensland Guardianship and Administration Tribunal took the same approach in a case involving an adult with a moderate level of intellectual disability who had exhibited aggressive and destructive behaviours over a period of time despite the trialling of many strategies to minimise those behaviours.^[75] The question for the Tribunal was whether it could make a guardianship order empowering the guardian to determine where the person under guardianship may live, to keep them at that place of residence and bring them back to that place of residence should they leave it. And, in addition, to require them to undergo examination and treatment by a doctor, including a psychiatrist, using the minimum force necessary and reasonable to carry out the treatment.

The Queensland Tribunal noted that it could appoint a guardian after finding that the incapable person did not have the capacity to make decisions for themselves. The Tribunal also noted that guardians can make decisions, in the best interests of those under guardianship even if that was contrary to the stated views of those under their guardianship.

The Tribunal also stated that the guardianship regime is not simply a “substitute decision making regime” but a regime which must operate in the “best interests of the adult” and, as such, allows guardians to make decisions which may restrain or contain the person under guardianship if that is in their best interests.^[76] Consequently, the person under guardianship could be held, diagnosed and treated against their stated views as a result of a decision of their guardian in the exercise of a function or power given to the guardian in a guardianship order.

Where the person under guardianship has behavioural problems, arising from their whole of life or acquired decision-making disability, this form of the accommodation function may need to be supported by a behaviour intervention and support plan. This matter is taken up later in this chapter.^[77]

There are similar provisions in the Tasmanian and Victorian legislation.^[78] It is respectfully suggested that those provisions can be used for the same purpose in those States as it is in New South Wales.

In South Australia the Guardianship Board has been given a specific statutory power to make orders of this kind.^[79] The guardian or another person may apply and the application may be heard at the same time as the application for the appointment of a guardian. The Board may make an order directing the person under guardianship to live with a specified person or in a specified place or with such person or in such place as the guardian from time to time thinks fit. The Board may authorise the detention of the person in the place where they are to reside.

It is the Board that authorises the detention. It may also, by order, direct where the person under guardianship may reside and with whom, but it may leave either or both those decisions to the guardian

While the order is in force, the Board may also authorise the person’s care providers to use such force as may be reasonably necessary for the purpose of ensuring the proper medical or dental treatment, day-to-day care and well-being of the person.

The Board cannot make any of these orders unless it is satisfied that the health or safety of the person under guardianship or the safety of others would be seriously at risk if the order was not made. However, the provision cannot be used to allow or authorise the detention of a person under guardianship in a correctional institution or any other place in which persons charged with or convicted of offences may be detained or in any part of an approved treatment centre under the Mental Health Act 1993 (SA) that is set aside for the treatment of those with a mental illness.

The guardian or a member of the police force may enter any premises and take the person under guardianship to the place in which they are to be placed or detained, but may use only such force as is reasonably necessary for the purpose. Also, the person in charge of the premises in which the person under guardianship is being detained may take such action as is reasonably necessary to prevent the person under guardianship from leaving the premises or for bringing them back to the premises should they leave without lawful authority or excuse. There are legal protections for those acting in good faith under this provision.

The District Court of South Australia has held that a guardian cannot use the authority given them under this provision to direct that the person under their guardianship be taken to a particular place of accommodation and held there over night in emergency situations. The guardian may direct that the person be detained in the place in which they will reside, but may not direct that they be taken occasionally to a particular place of residence as it could not be said that that they were residing there.^[80] Whether a guardian could direct that a person under their guardianship be detained temporarily in a particular place under this provision pending finding a permanent placement for them is an open question. It is a fact situation that is significantly different from that ruled upon by the District Court.

To help make these placement and detention provisions effective, the South Australian Act allows a member of the police force who has reasonable cause to believe that a person who is being detained in any place under such an order is unlawfully at large, without warrant, to enter any place in which the police officer believes on reasonable grounds that the person under guardianship may be and apprehend them, using only such force as is reasonably necessary for the purpose, and return them to the place in which they are being detained.^[81]

There is a specific offence in South Australia of, without lawful authority or excuse, removing from the place in which they are being detained a person who is being detained there pursuant to powers conferred under the Guardianship and Administration Act 1993 (SA). Aiding or abetting the person under guardianship to leave that place unlawfully is an offence also.^[82]

7. 5. 3. Health Care

Health care and medical and dental consent are different but related functions. The health care function or power authorises the guardian to take the initiative in deciding on and seeking out appropriate health care for the person under their guardianship. It gives the guardian a proactive role. As the New South Wales Guardianship Tribunal pointed out in a 2007 case:

The health care function allows a guardian to make decisions in relation to the choice of appropriate health care for a person under guardianship, the provision of that health care and for general health care planning. A guardian, exercising a health care function could, for example, determine that the person under guardianship should consult a specialist medical practitioner or a general practitioner. Differing treatment modalities can be chosen. A guardian might decide between surgical or non surgical care, traditional/Western medicine or alternative/complementary approaches, therapeutic or curative treatment or palliative care.^[83]

The Tribunal went on to note that:

Health care planning is an important part of a guardian’s role under the health care function. A health care plan can map out an approach to treatment and may contain general directions about treatment options. Health care planning affords a significant opportunity for a guardian to advocate on behalf of a person with a disability in relation to their health care needs. It can also be of particular importance for people in end of life situations, when a decision is made about adopting a therapeutic approach or a palliative approach to health care. Health care planning which addresses end of life issues is often referred to as advance care planning.^[84]

The Tribunal also distinguished advance care planning from the making of an advance directive, something a guardian has no power to make for a person under their guardianship

The health care function contrasts with the more reactive medical and dental consent function or power which authorises the guardian to seek out needed medical or dental treatment and to give consent to it and to give or refuse consent to medical or dental treatment proposed for the person under their guardianship by others. In New South Wales the medical and dental consent function is exercised under Part 5 of the Guardianship Act 1987 (NSW), but the health care function is not.^[85]

In a 2008 case decided by O’Connor DCJ, as President of the New South Wales Administrative Decisions Tribunal, the Guardianship Tribunal had given the Public Guardian a health care function to determine what health care and major and minor medical treatment the person the guardianship order was about may receive.^[86] The function specifically included the authority to make end of life care decisions including advance care planning. Because of a decision in an earlier case before the Administrative Decisions Tribunal, O’Connor DCJ was asked to determine whether the Public Guardian had power to approve an advance care plan or palliative care plan for a person who was the subject of a guardianship order that permitted life-sustaining treatment to be withdrawn.^[87]

O’Connor DCJ noted that in the case of unconscious or incompetent patients, the duties imposed on doctors to provide treatment, including life-sustaining treatment, rested on consideration of what was in the patient’s best interests for the purpose of preservation of life. However he continued:

But the law recognises that clinical judgments are involved, and that there is no need to continue treatments which are therapeutically ineffective, or are extraordinary, excessively burdensome, intrusive or futile. The law does not assume that a patient’s best interests are served by extending the patient’s life by whatever means are available and for as long as possible.^[88]

In his opinion, the Guardianship Act 1987 (NSW) did not fetter a guardian in a way that is inconsistent with the ordinary law, and because a plenary order bestowed on the guardian ‘all the functions of a guardian of that person that a guardian has at law or in equity’, a specified function in a limited guardianship order, whether it is health care function or another function, should be interpreted in accordance with what is permitted by law or in equity in relation to the particular kind of function that is specified. However he particularly noted that:

The only difference between the rights enjoyed under the law as between an autonomous individual with capacity, and a guardian responsible for a person without capacity, is that the guardian must always act according to best interests considerations whereas the autonomous individual, in the exercise of free will, may make decisions which, objectively, appear to be against his or her best interests.^[89]

While the Guardianship Tribunal’s authority comes from the Guardianship Act 1987 (NSW) and not the common law as does much of the Supreme Court’s authority, the functions that the Tribunal may give to a guardian can be to the full extent of the law’s understanding of the scope of a guardian’s power to make substitute decisions. The Tribunal cannot give, and functions must not be performed in a way that infringes the boundaries set by common law and equity. Also, in the case of a limited guardianship order, guardians must not perform the functions given them in a way that transgresses the terms of the order.^[90]

Consequently, O’Connor DCJ was of the view that a guardian could make health care decisions consistent with the principles that have been developed by the general law, and that the current law recognised that a guardian’s health function could involve the making of decisions about the withdrawal of life-sustaining treatment.^[91]

In the 2007 case, BAH, the Guardianship Tribunal took a view not dissimilar to the view taken in relation to the stronger, more specific, accommodation function discussed at 7. 5. 2 above. It considered that a general health care function was not sufficient authority to allow a guardian to make end of life health care decisions, including advance care planning and continued:

The Tribunal is able to give a guardian an end of life health care function, if the Tribunal is satisfied that a patient is in an ‘end of life’ situation. This can only be determined after a comprehensive assessment of the patient’s circumstances, including a thorough and impeccable investigation of the person’s medical situation, including their clinical needs, treatment options and prognosis. Family members and others with a genuine concern for the patient’s welfare, should be consulted and the views and wishes of the patient considered. In addition, evidence must also demonstrate that the appointment of a guardian is necessary and that the patient would benefit from having a guardian to make decisions about end of life health care.^[92]

The Tribunal went on to note what was expected of a guardian in these circumstances. It pointed out that a guardian:

1. Must take into account the views of the person,

2. Have regard to the other general principles of the Guardianship Act 1987 (NSW), including the importance of preserving family relationships.

3. Canvass the views of family members and significant others before any end of life health care plan is considered.

As the Public Guardian was aware that Ms BAH was opposed to medical intervention in general, it must balance those views carefully against considerations relating to her welfare and best interests.^[93]

The Tribunal also noted that:

A guardian with an end of life health care function can be a strong advocate for a person with a disability. Important questions can be asked. For example, in Ms BAH’s case, a guardian might ask whether a person without a disability, in a similar situation to Ms BAH, would be offered the same health care plan as has been proposed for her. A guardian with a health care function can ensure that health care decisions and health care plans are made to facilitate the best available care and support for the person under guardianship in light of that person’s individual needs and their views and wishes.^[94]

7. 5. 4. Medical and dental consent

As Powell J of the Supreme Court of New South Wales pointed out in a 1986 case, by reference to textbook writers from the late 19^th and early 20^th centuries, a long established role of a guardian is to see that every care is taken to promote the bodily health and mental improvement of the person under their guardianship and to see that they have good medical advice. It is the duty of a guardian to make all necessary arrangements for the care and treatment of the person under their guardianship.^[95]

Starting in the 1980s, all six States have created comprehensive statutory schemes for dealing with substitute consent to medical and dental treatment for adults unable to give a valid consent to their own treatment. In 2009, the Australian Capital Territory adopted such a scheme.^[96] The roles of the tribunal or court appointed guardians are set out in these schemes. While neither of the two territories have comprehensive schemes, it is clear that the relevant tribunal or court can appoint a guardian as a substitute decision-maker for medical and dental treatment in all the States and Territories of Australia.

This is a function or power that is regularly given to a guardian. The details of how the function or power is to be carried out in each State and the Australian Capital Territory are set out in Chapter 12.

While the statutory schemes overcome the need, in many cases, for a guardian to be appointed as a substitute decision-maker in relation to medical and dental treatment, by providing for statutorily authorised substitute decision-makers, there are some situations in which guardians need to be appointed for this purpose. Common examples of this are where there is conflict among the statutorily authorised substitute decision-makers as to the treatment to be provided to the person unable to give a valid consent to their own treatment or where there are differences of view about medical treatment between the incapable person and their close friends or carers.^[97]

Guardians are sometimes confronted with very difficult decisions as to whether or not to give consent to medical or dental treatment, particularly life-sustaining treatment.^[98] End of life decision-making is dealt with in detail in Chapter 14.

In the Australian Capital Territory, if a person makes an enduring power of attorney which gives the attorney powers in relation to health care matters but the person is subsequently placed under guardianship by ACAT, and ACAT revokes the power of attorney in whole or in part, the guardian must nevertheless consider the terms of the power of attorney before they make decisions about health care matters on behalf of the person under their guardianship.^[99] In the Australian Capital Territory health care matters include the withholding or withdrawal of medical treatment. Consequently, a guardian appointed in these circumstances is expected to acquaint themselves with what the person under their guardianship may have had in mind when they made their power of attorney.

7. 5. 5. Services

Another function or power commonly given to guardians is that of authorising them to empower others to provide services to the person under their guardianship. This function or power can be of great benefit to the person under guardianship in assisting them to continue to lead as normal a life as possible in the community by remaining, as they often desire, in their own homes but supported by others providing domestic support services to them through government subsidised programs, such as the Community Aged Care Package, or through services paid for privately.

Through the use of this function or power, elderly people with dementia, and others with decision-making disabilities, can be maintained in their own homes for months and sometimes years beyond that which would be possible if those services were not available to them because of their refusal to accept them. While this function is most often given to the guardians of elderly people with dementia, it can be used for the benefit of people with decision–making disabilities arising from other causes, for example, acquired brain damage and intellectual disability or, less successfully, arising from psychiatric condition.

The function or power is most often useful where the person’s decision-making disability makes them incapable of appreciating that they are unable to continue to live in their present accommodation without the assistance of service-providers and where their level of functioning is such that service-providers will be able to give them sufficient support to stay in their present accommodation – usually their own home.

The function or power is effective where, although the person under guardianship may be stating that they do not want the services provided, service-providers using normal methods of discussion, diversion or persuasion are able to gain access to the premises and provide their services.

What happens when the person under guardianship denies them access and they cannot persuade that person to let them in? Can the guardian authorise them to enter the premises forcefully? This matter was considered by the then Queensland Guardianship and Administration Tribunal in the 2006 case, Re CJ.^[100]

CJ was a 53 year old woman who had been living in her own home. She had diabetes which required constant monitoring and had been diagnosed with paranoid schizophrenia in 1985. CJ had been able to live independently in the community with the assistance of mental health case workers, service providers and the support of her sister, who lived nearby and who had a key to her unit. CJ’s meals were provided by Meals on Wheels and a nursing service monitored her diabetes. Those arrangements were working well until early 2005 when CJ began consistently to refuse entry to her residence to the mental health workers and the nursing service.

In January 2005 the Queensland Tribunal received an application from CJ’s psychiatrist, Dr A, seeking the appointment of the Adult Guardian as guardian so that a guardian could make decisions about CJ’s health care. Dr A advised that CJ lacked any insight into her illnesses and this was causing a great deal of concern as she was refusing necessary health care and other services for both her schizophrenia and her diabetes. In February 2005 the Tribunal appointed the Adult Guardian as guardian for CJ for decisions in relation to health care and the provision of services. However, the matter came on for further hearing in 2006 to consider a guardian’s power and duty to allow a health provider access to the house of the person under guardianship, when the adult refuses to allow such access and the Adult Guardian’s decision not to authorise access when the person under guardianship refuses access to her property for health care.

At the time of this hearing, CJ was the subject to an Involuntary Treatment Order under the provisions of Mental Health Act 2000 (Qld) and was receiving compulsory treatment for her mental illness. Also, she was denying that she had either a physical illness or a mental illness.

The Tribunal decided that, because of the long-established common law principle that every unauthorised entry upon private property is trespass and a person in possession or entitled to possession of premises has the right to exclude others from those premises, the power given to the Adult Guardian did not include power of entry into a premise in the absence of specific statutory power to do so. Furthermore, the Tribunal was satisfied that should CJ refuse the guardian or health providers’ access to her premises, then they may not authorise a forced entry under section 33 of the Guardianship and Administration Act 2000 (Qld).^[101]

The Queensland Tribunal also held that section 33 did not carry with it an implied power to enter a person’s premises if the person refused access to the guardian or someone acting under the guardian’s instructions.^[102]

Section 33 of the Guardianship and Administration Act 2000 (Qld) provides that a guardian is authorised to do anything in relation to a personal matter that the person under guardianship could have done if they had capacity for the matter when the function or power was exercised. This provision is similar to provisions found in the New South Wales, Tasmanian, Victorian and Western Australian legislation.^[103] While the then Queensland Guardianship and Administration Tribunal’s decision in Re CJ may be correct on the facts of that particular case, it is respectfully suggested that it does not apply to many other similar fact situations. That case can be seen as an attempt, appropriately resisted by the Tribunal, to use the guardianship legislation to impose compulsory treatment for a psychiatric condition on a person, something which the mental health legislation of the various States and Territories is established to do.

As was submitted in the Re CJ, guardianship legislation is remedial in nature so that its provisions should be given a broad interpretation to achieve the general principles and objects found in that legislation. Section 33 and the similar provisions in the New South Wales, Tasmanian, Victorian and Western Australian are designed to place a guardian in the same shoes as the person under guardianship in relation to any decision or action that they could have made if the adult had capacity at the time. In other words to give the decision-making power of the person under guardianship to the guardian.

Also, as was submitted, there are no legislative provisions to prevent the tribunal or court dealing with the matter giving a guardian an expressed power to facilitate the person under guardianship receiving health care by providing access to them, for example, by providing a nominated person with a key and an expressed right of entry provided the entry was for the purpose for ensuring that the person receives the services they needed to be able to live at home.

The services function or power is often used as a less restrictive alternative to having to place a person under guardianship in an aged care facility or other place of supported accommodation where their lives are much more controlled and regimented by others. It also protects them from self-neglect.

It is also crucial to appreciate that the services function or power can be given only if the person has been found to be incapable of decision-making in relation to the matters covered by that function or power. Seen in the light of all these factors, and appreciating that entry onto the premises is for the purpose of providing services to the person, not to arrest them, search their premises or forcibly treat them, then entry onto the premises under the authority of the guardian, even with the use of a key, as long as force is not used either to gain entry or to provide the services, is within the scope of the function or power.^[104]

In Western Australia, there is a specific provision that can be used where the person under guardianship is on certain premises if the occupier or person in charge of those premises refuses to allow a guardian to enter those premises for the purpose of performing any function in relation to the person under guardianship.^[105] It can be assumed that the provision applies to the performance of any guardianship function given to the guardian. It may well apply to other functions necessarily associated with the guardian’s responsibilities arising from their appointment as a guardian, for example, acting to protect the person under guardianship from abuse, exploitation or neglect.^[106]

The section authorises the guardian to apply to WACAT for a warrant to enter those premises. If the Tribunal is satisfied that it is necessary for the guardian to enter those premises, it may issue a warrant authorising the guardian to enter the premises by force, if necessary, during a particular period or at any time, as the warrant may specify. When executing the warrant, the guardian may be assisted by such persons as the guardian thinks necessary, including police officers. It is an offence to obstruct or hinder a person acting under the authority of such a warrant, without reasonable cause.^[107]

This is not an appropriate mechanism for ensuring the safety of the person under guardianship over anything other than a short period of time.

This provision can also be used for confirming whether or not the person is in those premises. This could be useful in cases of “grannynapping” where a person is taken away from where they are living by someone other than the guardian or someone acting under their direction and are being kept at that other place to which the guardian cannot obtain access.^[108]

7. 5. 6. Access

Although it may have been borrowed from family law, it is accepted that making decisions as to who should have access to a person under guardianship and under what terms and conditions is a function or power that a guardian of an adult may need to exercise under a plenary guardianship order or may be given to a guardian in a limited guardianship order. Following principles developed in family law, the function or power must be exercised in the best interests of the person under guardianship and not as a right of others, including the parents of a person with a whole of life intellectual disability.^[109] In Queensland, access has been held to be a "personal matter” for the purposes of the Guardianship and Administration Act 2000 (Qld).^[110].

In a 1984 case, Powell J of the Supreme Court of New South Wales relied on precedents going back to the 18^th century dealing with court ordered access to an incapable person to appoint the Protective Commissioner as the committee of both the estate and person of a young woman who had a severe intellectual disability and to make access orders which gave the Protective Commissioner a small role in approving the necessary arrangements.^[111]

In a 2006 case, WACAT appointed a guardian to deal with access and contact issues rather than leave dealing with these matters in the hands of the person’s service providers. WACAT reappointed the Public Advocate as limited guardian for LA, a 29 year old woman with physical and intellectual disabilities. The Tribunal noted that LA was settled in her accommodation placement and received an excellent level of care but that there was no one available and appropriate from her family to decide personal matters on her behalf. The Tribunal considered that, in the particular circumstances of that case, it was not in LA’s best interests that decisions about personal matters be made by the service providers or by her paid carer and that it was appropriate that an independent guardian with the formal authority to decide matters in relation to her person be reappointed, namely the Public Advocate.^[112]

In that case a request had been made by LA’s mother for LA to have contact with her sister who was currently in prison and with family members in a remote community. The Tribunal noted that family contact and visits to her community were critical to the maintenance of LA’s family and cultural relationships and continued:

The decisions which may be made in relation to contact are complex as they may include balancing the needs of the represented person for contact with her family, her cultural needs, the maintenance of her relationships, her wishes and the need to limit the restriction on her rights with the need to ensure the proper protection of her health and safety. Exercising this judgment goes beyond the role and proper authority of a paid carer or service provider. Decisions to allow or restrict contact the represented person has with others should be made by a guardian with formal authority having regard to the sometimes competing considerations in [section 51 of the Guardianship and Administration Act 1990 (WA)] which elaborates on the way in which a guardian acts in the best interests of [the person under guardianship].^[113]

The issue of facilitating access is also relevant to older people under guardianship. Older people with a disability, particularly those with dementia, are sometimes sequestered at home by those caring for them. This may occur as a result of family conflict, particularly when one family member who is living with the older person limits access to the older person, often to the older person’s detriment. In such cases it may be useful to give an access function or power to a guardian in order to facilitate contact with friends or family members. Sometimes access functions are needed so that the guardian and those providing accommodation services to the person under guardianship can work out a roster or other arrangements to allow a range of visitors, who would otherwise clash with one another, to visit the person under guardianship.^[114] An access function may also be necessary where an elderly person with dementia is vulnerable to the influence of their spouse, other family members or significant others who, themselves, may have cognitive defects caused by dementia or other health problems.^[115]

Sometimes access functions are needed to allow the guardian to stop another person having access to the person under their guardianship because that other person has indicated that they intend to remove the person under guardianship from their current accommodation against their best interests and contrary to the accommodation decision made by the guardian.^[116]

7. 5. 7. Behaviour intervention and support

Some people who have an intellectual disability or acquire a brain injury or develop dementia have difficult behaviours. In dementia, such behaviours are considered an integral part of the disease as they occur in up to 90% of patients, and are formally known as Behavioural and Psychological Symptoms of Dementia (BPSD).^[117] These behaviours can be a manifestation of the intellectual disability, brain injury or dementia per se, or a manifestation of a complicating (or “comorbid”) medical or psychiatric condition which must be identified and treated. There are a myriad of causes of difficult behaviours which can be summarised as follows:

1. Manifestation of a comorbid medical condition, often causing delirium (e.g. pain, infection, constipation, electrolyte disturbance, drug toxicity)

2. Manifestations of comorbid psychiatric conditions (e.g. depression, psychosis)

3. Biological causes intrinsic to the intellectual disability, head injury or dementia, due to genetic, or neurobiological (neurochemical or neuropathological) factors

4. Psychological causes (e.g., premorbid personality, response to stress)

5. Social causes (e.g., environmental factors such as changes in staff, co-residents, place of living, boredom, under or overstimulation, caregiver factors).

This difficult behaviour can be manifested in many ways, but it often takes the form of aggression directed at self, others or property prompting a need for intervention. One of the challenges for those providing care or medical services to people with difficult behaviours is to discover the cause of the behaviour and to reduce or eliminate that cause. At the same time, if the behaviour puts them, the person manifesting the behaviour or others at risk, they have to take appropriate steps to protect the person, themselves and others from injury and property from destruction. However, it is neither ethically acceptable nor lawful to respond simply by physically or chemically restraining the person with the difficult behaviour. Their situation must be investigated to discover whether the behaviours can be stopped or reduced by treatment for a superimposed medical condition – for example urinary tract infection in elderly people with dementia – by diagnosis and treatment of a psychiatric condition, providing a more stimulating but physically safe environment for the person to live in or by giving the person extra support during a period of change.

As a result of the efforts of some psychologists, psychiatrists, service providers, family members and support groups for people with decision-making disabilities, there is now considerable experience, as well as training, available to assist service-providers and family members to deal with these matters as well as policies, practices and procedures developed by government and non-government agencies to deal with incapable people with difficult behaviours in an ethical and legal way.

Importantly, available research now shows that many patients with difficult behaviours due to intellectual disability, brain injury and dementia improve with appropriate treatment. Such treatment may include pharmacological and non-pharmacological measures, the latter being usually first-line in dealing with milder behavioral difficulties. There is a limited, but rapidly growing, body of research supporting the use of these non-pharmacological interventions in dementia, particularly those tailored to the needs of the particular person.^[118],[119] If the difficult behaviour can be resolved by action that is not intrusive such as appropriate medical treatment, a change in accommodation, the provision of extra support or reinforcement of positive appropriate behaviours, guardianship will not be required.

However, sometimes restrictive practices and medication are needed to control difficult behaviour. Problems without an environmental trigger that are severely distressing to the caregiver often (though not always) require medication in conjunction with non-pharmacological interventions.^[120] A range of psychotropic medications such as antipsychotics, antidepressants, benzodiazepines and anticonvulsants have been used in this context, with variable empirical evidence to support their efficacy. When prescribing is informed and judicious, utilising low starting doses with slow and cautious dose titration, and careful monitoring for the emergence of side effects, pharmacological intervention can be helpful in managing a range of BPSD in dementia such as aggression and psychosis.^[121]

The outcome of a pharmacological treatment should be monitored on a routine basis for both its effect on the frequency and severity of the symptoms and their side effects. As a matter of principle, drug treatment for BPSD should be time limited and, with the exception of antidepressant treatment for depression, should not exceed 12 weeks without a review of the treatment regimen.^[122] Very often in the case of dementia, the need for drug treatments for BPSD changes as the disease progresses.

Restrictive practices are those which, in the absence of formal consent, may be deemed unlawful because they limit or confine a person’s movements, access and freedom. They include physical restraint and physical contact where the person objects and exclusionary time out – a period of time in a room away from others. Not all restrictions on a person’s movements are restrictive practises requiring the appointment of a guardian.^[123]

Appointing a guardian as a substitute decision-maker with functions or powers relating to behaviour intervention and support, and having a guardianship tribunal as an expert body regularly reviewing the need for guardianship is sometimes an appropriate response to the issues raised by such situations.

The Guardianship Tribunal of New South Wales notes that restrictive practices and medication may need to be used in an emergency to prevent harm but that if they are required on a continuing basis, they should be provided only in the context of a behaviour management and activities plan and a care plan that reflects a person-centred approach to all activities of daily living needs, as well as spiritual and social activities.

It is the practice of the Tribunal to make guardianship orders authorising guardians to consent to the use of restrictive practices and medication to manage challenging behaviours where there is a thorough, documented assessment of the reasons for the person’s behaviour and where systematic attempts to use positive non-pharmacological interventions, such as a tailored behavioural or activity programme has been trialled and found to be inadequate. The Tribunal’s orders are crafted to ensure that any behaviour intervention and support plan is used only under strictly controlled circumstances and that it promotes the wellbeing and interests of the person with the decision-making disability and will operate in accordance with the general principles of the Guardianship Act 1987 (NSW).^[124]

7. 5. 7. 1. Keeping safe (containment)

Although the law changed in Queensland in 2006 as a result of the commencement of the Disability Services Act 2006 (Qld), in a 2003 case dealt with by the then Queensland Guardianship and Administration Tribunal, it is suggested that the legislation still reflects the common law. That case involved a 23 year old woman who had an intellectual disability in the moderate range following a brain haemorrhage after an injury when she was three and a half years of age.^[125] She had been taken into care at the age of twelve and had a series of placements in foster care during her teenage years.

At the age of 23 and in a large residential institution in Queensland, her behaviour continued to be aggressive and destructive involving regularly kicking holes in walls, tipping out food, misuse of cleaning products and food, swearing at staff, physically threatening staff, pulling wires out of walls, throwing cups at walls, kicking windows, pulling a stove down and pulling out the door.

Despite the trialling of many strategies to minimising her behaviours, none had been successful. Her outbursts were unpredictable and included an incident in which a staff member was threatened with a knife. The young woman’s behaviour also included significant self harm as she used her knees and elbows to damage walls and windows, resulting in bruising and cuts to these areas. Staff also reported increasing levels of obsessive behaviour and episodes where the young woman believed she was talking to and listening to people who were not actually present.

The Queensland Tribunal stated that guardians must inherently have the power to prevent those under their guardianship harming themselves. Further, that guardians can provide the consent necessary to allow restriction or containment just as those under guardianship themselves could do so if they had capacity.^[126] The Tribunal empowered the guardian to authorise medical assessment and treatment of the young woman as well as containment of her to allow this to occur.

7. 5. 7. 2. Seclusion

Seclusion will sometimes be included in a behaviour intervention plan. However, before discussing that matter, it is worth noting Lord Scott’s comment in the House of Lords that:

It cannot be doubted that Ashworth (a hospital where mentally disordered patients are detained) owes a legal duty to each of the inmates of the hospital to take reasonable steps to protect him or her from physical injury by other inmates. Ashworth cannot choose its patients. They are sent to Ashworth by others and Ashworth has to accept them, to detain them and to look after them. All of them suffer from some degree of mental disturbance - otherwise they would not be there. Some of them from time to time present a physical danger to other inmates. Where the danger appears particularly acute Ashworth's legal duty to the other inmates may well require Ashworth to place the dangerous inmate in seclusion. It is accepted that the only legitimate purpose of placing an inmate in seclusion is the protection of others. Seclusion cannot be used as a punishment nor can it constitute medical treatment, at least in the narrow sense of that expression. And the placing of a patient in seclusion where the apprehended danger that the patient in question may inflict harm on other inmates is sufficiently acute would, in my opinion, constitute a step that Ashworth's legal duty to the other inmates would require it to take.^[127]

Reacting urgently to a situation and secluding one person for the protection of others may be allowable under a common law duty of care to protect the others from the imminent risk of harm. However, this duty of care can only be relied upon in urgent and unforseen circumstances. If incapable persons with difficult behaviours are known to have outbursts of violence that may threaten others, it is the responsibility of the carers of such people to address that issue by taking appropriate action to discover the cause of the behaviours if possible and to develop ways, including behaviour intervention plans, to reduce those behaviours in the interests of those people and all those in contact with them.

In the House of Lords, Lord Hope described seclusion in its unadorned reality as a means of controlling seriously disturbed behaviour. He noted that there was general agreement that the sole aim of seclusion was to control such behaviour where it was likely to cause harm to others and continued:

There is general agreement also as to the nature of the procedure. It consists of the supervised confinement of the [person] in a room which may be locked to protect others from significant harm. But opinions differ sharply as to the length of time for which it may be proper to resort to it. This in turn affects the degree to which seclusion in practice interferes with the[ person's] personal autonomy, the extent to which it is possible for the state by means of a uniform code to regulate this and the way in which the [person’s] interests are to be safeguarded.^[128]

When this case was in the Court of Appeal, Hale LJ suggested another possible legal justification of the use of seclusion, namely what she called the “common law doctrine of necessity”.^[129] She noted, in reliance upon In re F, that where a person lacks capacity, there is a power to provide them with whatever treatment or care is necessary in their best interests.^[130] She then continued:

The fact that there exists a power to control or protect cannot mean that any and every use of that power is lawful. There must be limits. If there were not, it would still be lawful to confine patients in the shackles and other mechanical restraints which were commonly employed in the madhouses and asylums of the past. …. The criterion must be one of reasonable necessity judged against the purpose for which the restraint is employed. Hence, a detained patient may be kept in the hospital with no more force than is reasonably necessary in the circumstances to achieve this. Any patient may be restrained from doing harm to others with no more force than is reasonably necessary in the circumstances. An incapacitated patient may be given such treatment as is reasonably necessary in his own best interests.^[131]

While seclusion may be a justifiable way of dealing with an incapable person’s difficult behaviours in some situations, it is clear that if the possibility of seclusion is to be included in any behaviour intervention plan, it must be provided for as a last resort and be subject to reasonable time limits with strict limits on the force that can be used to get a reluctant person into a place of seclusion.

The of New South Wales Guardianship Tribunal has developed two position statements on the issue of behaviour intervention and support, relating respectively to the contexts of intellectual disability and dementia. Those statements emphasise the following principles:

1. The need for a thorough assessment

2. Behaviour management and activities plans should accompany an application

3. Positive (non-restrictive) interventions are the preferred method of providing support to people experiencing behavioural disturbances

4. A guardian needs to be authorised to consent to restrictive practices if such practices are to be used in an attempt to manage or change the behaviour of the person.

5. Specific authority to exercise the use of physical restrictive practices must be contained in a ‘restrictive practices’ function in the guardianship order

6. A guardian does not need to be appointed to authorise restraint that is used to provide a safe environment for the incapable person under a duty of care if there are no concerns held by any of the relevant persons involved

7. If the legality of the use of restraint or confinement is unclear, an application should be made to the Tribunal to determine if there is a need to appoint a guardian authorised to consent to the restraint or confinement

8. If the Tribunal considers it is appropriate for the Tribunal, the ‘person responsible’ or guardian to consent to the use of medication to manage challenging behaviours, this should be done with a request to consent to medical treatment.

9. It is appropriate for the Tribunal to regularly review the use of PRN and other major medication and restrictive practices to ensure alternative approaches are trialled and adopted and that major medications are reviewed and adjusted regularly

10. When an application is made in response to a crisis the Tribunal should ensure the care provider also undertakes to provide an assessment of the person’s behaviour and to develop a comprehensive individualised behaviour management and activities plan based on positive interventions and only make a short order when no proper plan is yet in place.

11. In determining how much direction to give a guardian in relation to restrictive practices, the Tribunal should consider all relevant circumstances

12. It may be appropriate in some circumstances for the Tribunal to include specific conditions in relation to restrictive practices.^[132]

7. 5. 7. 3. Chemical and physical constraint

In a 2002 case, the then Guardianship and Administration Board of Western Australia dealt with the question of the use of chemical and physical restraints on a man living in an aged care facility who had alcohol-related dementia and who intermittently became agitated and aggressive for no observable cause.^[133] The Western Australian Board noted that the medication proposed was intended for behaviour management and treated the case as one of chemical restraint that necessitated the appointment of a guardian make decisions as to whether or not restraint was required and, if so, in what circumstances and what type of restraint was required. The Board noted that this was a contentious and sensitive issue and that the use of restraints was open to abuse unless appropriate monitoring systems were in place.^[134]

In a 2008 case the State Administrative Tribunal of Western Australia, following the case noted in the last paragraph, held that the use of antipsychotic medication to control the difficult behaviour of a man with acquired brain damage who was not psychotic was chemical restraint. Consequently, a guardian was needed to be appointed for the man to consent to the ongoing use of the medication which was accepted as being necessary and in his current best interests.^[135]

7. 5. 7. 4. Holding a person with an intellectual disability and behavioural problems in a place in which there are restrictions on liberty not “false imprisonment”

In 2010, Johnstone DCJ of the New South Wales District Court held that a person with an intellectual disability and behavioural problems charged criminal offences sent to the Kanangra Centre operated by the New South Wales Department of Community Services originally on remand for the alleged offences, but held there for six and a half years against the wishes of the person’s guardian was not falsely imprisoned.^[136] This was because the fact of intentional total restraint could not be proved on the facts of the case.^[137]

The young woman involved had substantial and difficult to manage behavioural problems which led to all her placements in community based accommodation breaking down, prior to her being charged with the criminal offences, even when she had 24 hour support provided by the Department. The Guardianship Tribunal had, prior to the criminal charges being laid against her, appointed the Public Guardian as the young woman’s guardian and the Protective Commissioner as her financial manager. The Tribunal kept renewing the guardianship order after each review, and the financial management order remained in place. Although the Public Guardian pointed out to the Department constantly that the young woman’s placement at the Kanangra Centre was inappropriate, the Department temporised for many years, part of the time because of the cost of providing the young woman with appropriate supported accommodation, but eventually provided such accommodation to her.

7. 5. 8. Restriction of the freedom of movement of and consent to other restrictive practices in relation to those a who has been in trouble with the criminal law or others with an intellectual disability

The New South Wales Guardianship Tribunal occasionally empowers a guardian to authorise others to restrict the freedom of movement or impose other restrictive practices in relation to a person with an intellectual disability who has been in trouble with the criminal law. In some cases, these restrictions will be an appropriate part of a behaviour intervention and support program for the person under guardianship as they will:

1. assist the person under guardianship to change their behaviour and move towards a more positive and fulfilling lifestyle,

2. help the person to avoid re-offending and risking imprisonment,

3. facilitate access to bail, bond, parole and other non-custodial options,

4. assist the person to comply with conditions on non-custodial options.

The Tribunal has noted its need to be careful about giving this function to a guardian because of the risk of guardianship orders being used as community protection orders rather than as orders that maintain their paramount focus on the interests of the individual under guardianship. The Tribunal also noted the comparative lack of established standards of good practice in behaviour intervention and support in relation to offending behaviour, the very limited skill base in NSW in this field. In addition, it noted the fact that people with offending behaviour usually had comparatively mild intellectual disabilities so that the issue of incapability and its nexus to the offending behaviour, as well as whether a guardianship order could be made for them, was not clear cut.

The Tribunal's “Position Statement on Behaviour Intervention and Support in applications relating to a person with an intellectual disability” sets out how it will deal with applications for guardianship orders to deal with these matters.

7. 5. 9. Restrictive practices in legislation in Queensland and Victoria

Queensland and Victoria have legislated specific arrangements relating to behaviour intervention and support for people with decision-making disabilities who have difficult and dangerous behaviours.

The Disability Act 2006 (Vic) deals with “restrictive interventions” namely any intervention used to restrict the rights or freedom of movement of a person with a whole of life intellectual disability including chemical restraint, mechanical restraint or seclusion.^[138] It does not apply to people with dementia, brain damage acquired after 18 years of age or a psychiatric condition.^[139]

The regime in the Disability Act 2006 (Vic) does not involve the appointment of guardians. However, a disability service provider may apply to VCAT to review a decision of the Secretary of the Department of Human Services to refuse its application for approval of a proposal to use restrictive interventions on a person.^[140] VCAT may also deal with an application made to it to review a decision to use restraint or seclusion in a behaviour management plan.^[141] Also VCAT may deal with an application by a person with a disability to review the inclusion of the use of restraint or seclusion in their behaviour management plan.^[142]

The restrictive practices legislation in Queensland, the Disability Services Act 2006 (Qld) in combination with the Guardianship and Administration Act 2000 (Qld), may apply to people with a wider range of disabilities. While it applies only to people who receive services from a service provider funded under the Disability Services Act 2006 (Qld), it applies to any of those who are adults with a disability who has a condition attributable to an intellectual or cognitive impairment, or a combination of these impairments.^[143] QCAT is required to approve any plan containing proposals for the containment or seclusion or an associated restrictive practice proposed for a relevant adult. QCAT may appoint guardians specifically as consent-givers for other forms of restrictive practice.^[144]

In 2009, the then Queensland Guardianship and Administration Tribunal held that the administration of the drug Androcur to reduce the sexual urges of a person with a decision-making disability was a restrictive practice because it was a form of chemical restraint requiring the consent of a guardian appointed under the restrictive practices provisions of the Guardianship and Administration Act 2000 (Qld).^[145]

7. 5. 10. A guardian to make decisions about religious observance

The issue of whether guardians can be appointed to make decisions about the religious observance of a person under their guardianship arose in a New South Wales case in which a guardian sought to be reappointed to make such decisions.^[146] The Guardianship Tribunal noted two of the general principles of the Guardianship Act 1987 (NSW) that it has a duty to observe when making its decisions in relation to persons with a disability. These were that the Tribunal must ensure that the freedom of decision and freedom of action of persons with a disability should be restricted as little as possible and that such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs.^[147] The Tribunal then took the view that the freedom of a person with a disability to choose how they should practice their faith should be paramount and that it was not appropriate to impose a guardianship order which could possibly result in restrictions in relation to the practice of her faith by the person the guardianship review was about as this was clearly a matter involving her personal affairs.^[148]

Responding to an argument that the Tribunal had no power to make a guardianship order in relation to matters of religious observance, the Appeal Panel of the New South Wales Administrative Appeals Tribunal stated:

[W]e are loathe to conclude that this is a category of decision making which could never be the subject of such decisions. There may be instances where it is necessary for the benefit or welfare of the person that such decisions are made on their behalf. It follows that, in our view, the Guardianship Tribunal has jurisdiction to make a guardianship order which would allow a guardian to make decisions, take action and give consent in relation to matters involving religious observance as long as that was considered necessary for the welfare or benefit of the person.^[149]

The Appeal Panel then continued:

Whether such an order should be made in this case can only be determined once the Guardianship Tribunal has re-heard the evidence and made new findings of fact.^[150]

The facts of this case show why careful consideration must be given to the circumstances of the case and the evidence of the person with a decision-making disability before such a function or power is given to the guardian. The person the hearing was about was elderly and cognitively impaired as a result of alcohol related brain damage. She was a long term adherent of the Jehovah’s Witness faith. She lived in an aged care facility which placed no impediment in the way of her practice of her faith and which respected the practice of different faiths. She had told senior staff at the aged care facility that she was a Jehovah’s Witness and that while she not observe Christmas and some of the other things on the Christian calendar, she did like the sound of carols and enjoyed carols singing wanted to attend every Christmas-themed activity that took place.

The person seeking to be guardian with the religious observance function was also a Jehovah’s Witness who had the view that attending such activities was contrary to the religious beliefs of the person the hearing was about. Also, the person seeking to be guardian had told staff of the aged care facility not to allow the person the hearing was about to participate in any Christmas-themed activities even if that meant that she was by herself in the cottage while every other resident went to such an activity.^[151]

7. 5. 11. Miscellaneous functions or powers

7. 5. 11. 1. Travel

VCAT has held that it can make a guardianship order that gives a guardian power to make decisions concerning travel, including travel abroad, for the person under their guardianship.^[152]

7. 5. 11. 2. To obtain legal advice about a pre-nuptial agreement

WASAT has given a guardian the power to obtain legal advice in respect of the prenuptial agreement said to have been signed by the person under guardianship, and to take any steps necessary concerning that agreement which are appropriate and in the best interests of that person.^[153]

7. 5. 11. 3. To maintain a claim for compensation in a Commonwealth tribunal

The New South Wales Guardianship Tribunal has made a guardianship order appointing the father of the man the limited order was about as his guardian with an advocacy function. This function was intended to permit the father to maintain the claim by his son against the Military Rehabilitation and Compensation Commission in the Administrative Appeals Tribunal.

When Madgwick J of the Federal Court dealt with the matter, he was clear that the Guardianship Tribunal intended that the father’s advocacy function should extend to giving instructions and that that was a plain indication that the father was authorised to obtain legal representation for his son and instruct the legal representatives on his behalf.^[154]

7. 5. 11. 4. To deal with immigration matters

The New South Wales Guardianship Tribunal has made a guardianship order appointing the cousin of a man with dementia to deal with the man’s immigration issues. The Tribunal also made an administration order in relation to the man’s estate.^[155]

7. 5. 11. 5. To formally change the name of the person under guardianship

The New South Wales Guardianship Tribunal has made a non-renewable guardianship order appointing the mother of a severely autistic man to deal with the Registry of Births, Deaths and Marriages in order to change his name.^[156]

7. 5. 11. 6. To approve fingerprinting to help identify an unconscious person

In 2008 the New South Wales Guardianship Tribunal made a non-reviewable guardianship order appointing the Public Guardian as an unknown person’s guardian for a period of one week to make substitute decisions on his behalf so that his fingerprints could be taken for the purpose of establishing his identity and informing his closest friends and family, as appropriate, of his circumstances.^[157]

7. 6. The ancillary powers of guardians

Guardians need to be able to carry out a number of powers in order to give full effect to their duties and responsibilities as guardians. Some of these are set out in the legislation of the different States and Territories. Some of these need to be inferred in the other States and Territories order for guardians to be able to function effectively and for their decisions to be given effect to. These matters are discussed below.

In Queensland, New South Wales, Victoria, Western Australia and the Northern Territory a guardian may, on behalf of the person under their guardianship, sign and do all such things as are necessary to give effect to any function, power or duty vested in the guardian.^[158] The Queensland Act even provides that if a guardian is given a power to do a thing it is, by implication, given the power to execute a deed to do the thing.^[159]

Guardians in South Australia, Tasmania and the Australian Capital Territory would have to have these roles implied into their responsibilities in order for them to be able to carry out their responsibilities as guardians effectively.

In Queensland, guardians have been given a statutory right to all the information that those under their guardianship would have been entitled to if they had capacity and which is necessary to make an informed exercise of any power given to the guardian. Those who have custody or control of the information must give it to the guardian when the guardian requests it, unless they have a reasonable excuse for not doing so. Failing to give the information because it might tend to incriminate the person who has it is a reasonable excuse, but the statutory right overrides any restriction, in an Act or the common law, about the disclosure or confidentiality of information and any claim of confidentiality or privilege, including a claim based on legal professional privilege. Also, the guardian may apply to the QCAT and it may order the person to give the information to the guardian.^[160]

While guardianship tribunals elsewhere in Australia do not have the power to order the giving of necessary information to guardians, in New South Wales, Tasmania, Victoria, Western Australia, the Australian Capital Territory and the Northern Territory the decisions of guardians have effect as if they were the decisions of the person under guardianship. ^[161] This opens the way for an argument that, by necessary implication from the guardianship legislation in those States and Territories, and probably that of South Australia, guardians have the right to the information the person under guardianship would have been entitled to provided it is relevant to matters they have to make decisions about in the best interests of the person under guardianship.

7. 7. Directions (and advice) to guardians

When the Supreme Courts of the Australian States and Territories had the exclusive jurisdiction to make guardianship and administration orders, they were prepared to be very directive in the orders they made when they considered this to be necessary. This is shown in the 1984 decision of Powell J of the Supreme Court of New South Wales in RH v CAH.^[162] In that case, Powell J appointed the Protective Commissioner the committee of the person (guardian) of a young woman with a severe intellectual disability and then went on to make further orders about access and gave a set of directions as to what was to happen if others, including the Protective Commissioner as committee, could not agree on the access arrangements.^[163]

The tribunals dealing with guardianship matters in Queensland, New South Wales, South Australia, Tasmania, Victoria and Western Australia, but not the Australian Capital Territory or Western Australia, have been given the jurisdiction to give directions, but in a slightly different form in each State.^[164]

In Queensland QCAT and in Western Australia WASAT have jurisdiction to give directions to guardians.^[165] These directions can be given at the time the guardianship order is made or at a subsequent time. There is no statutory limit placed on the scope of the directions that may be given.

In Queensland QCAT may also make recommendations and give advice to guardians.^[166] Applications for directions, recommendations or advice may be made by the person under guardianship or any other interested person meaning, in this context, a person who has a sufficient and continuing interest in the person under guardianship.^[167]

In New South Wales only guardians may apply for directions and only as to the exercise of their functions in relation to those under their guardianship. The Tribunal must conduct a hearing into any application made by a guardian, and when considering the application must have regard to:

1. the views (if any) of the person under guardianship and the guardian,

2. the importance of preserving the person’s existing family relationships, and,

3. the importance of preserving the person’s particular cultural and linguistic environments.^[168]

In South Australia also, only the guardian may apply, to the Guardianship Board, for directions, but for a broader range of directions, namely:

1. directions on the exercise of the guardians powers under the Guardianship and Administration Act 1993 (SA) or any other Act or law or as to the scope of those powers or,

2. for approval to the taking of any action for which the approval of the Board is required.^[169]

Any direction given by the Board is binding not only on the applicant guardian but also on any other joint guardian.^[170] A guardian may also apply to the Board for advice.^[171]

In Tasmania the Guardianship and Administration Board may, “of its own motion, direct a guardian in respect of any matter”.^[172] Also, a guardian may apply for advice or direction by the Board on any matter relating to the scope of the guardianship order or the exercise of any power by the guardian under the guardianship order. After considering the application either with or without a hearing, the Board may:

1. approve or disapprove of any act proposed to be done by the guardian,

2. give such advice or direction as it considers appropriate; and

3. vary the guardianship order or make any other order that it could have made on the original application.^[173]

It is an offence for a guardian to contravene a direction.^[174]

In Victoria, only a guardian can apply, to VCAT, and only for its advice upon any matter relating to the scope of the guardianship order or the exercise of any power by the guardian under the guardianship order. However, in dealing with the application, VCAT may:

1. approve or disapprove of any act proposed to be done by the guardian,

2. give such advice as it considers appropriate, and

3. make any order it considers necessary.^[175]

No legal action can be taken against a guardian because of an act or thing done or omitted by the guardian under any order or on the advice of VCAT under this section, unless in representing the facts to VCAT the guardian has been guilty of fraud, wilful concealment or misrepresentation.^[176]

7. 7. 1. Case law on directions to guardians

The Australian guardianship tribunals do not often give directions to guardians, particularly public officials who have a statutory responsibility and obligation to act as guardian if appointed.

The function of guardianship tribunals and the public or private guardians appointed by them are separate and distinct. On most occasions, the functions of the Australian guardianship tribunals are primarily supervisory.

They make the appointments of guardians and administrators (financial managers), review those appointments, and define the matters about which a guardian may make decisions. The role of the guardian essentially is to make decisions in the best interests of the person under their guardianship in relation to those personal matters they have been authorised to make decisions about. The tribunals themselves do not make those decisions.

Nevertheless, guardians and others, where they have the right to, sometimes apply for directions. In 2006, the then Queensland Guardianship and Administration Tribunal considered the extent of its powers when asked to give directions to a guardian.^[177] It saw the question before it as being whether the Tribunal had the power to give a direction to a guardian which had the effect of the Tribunal making a decision which the guardian was otherwise empowered to make and whether it could, by the directions it gave, effectively override a decision which the guardian had already made.^[178]

The Tribunal said that its power to give a direction, recommendation or advice has its origin in the analogous jurisdiction of the courts to give advice and directions to trustees under legislation relating to trustees. The ability to seek such guidance from a Supreme Court was seen as beneficial to trustees.

The Tribunal considered that in seeking a direction from it, the guardian was, in effect, asking the Tribunal to stand in their shoes and make a decision which the guardian was empowered to make.

The Tribunal noted that, if a narrow interpretation of the directions function was applied and the Tribunal could not give guardians directions with the effects referred to above, the consequence would be that guardians, who in all other respects may be competent and appropriate, would have to be removed. The Tribunal particularly noted that, the removal of a public official who was the guardian would often be to remove the guardian of last resort – something that was not an option in reality.^[179]

The Tribunal concluded that it had the power, at the time it appointed the guardian, or reviewed the guardianship order, as well as on a specific application, to impose restrictions on or give instructions to a guardian which may extend to directing a substantive course of action for the guardian.

It also concluded that its power to give directions extended to directing the guardian as to how they should exercise their powers, and to how a decision which the guardian had been appointed to make should be made.^[180]

In a 2007 case the then Queensland Tribunal gave directions effectively overriding the Adult Guardian’s decision, in the exercise of the accommodation function or power, to move the person under guardianship from one accommodation service to another.^[181]

^[1] Guardianship Act 1987 (NSW) ss 16(2)(b), 21(1)(b) and 21(2A). Relying on the authority of late 19^th and early 20^th century textbook writers, Powell J referred to the broad powers and duties of the committee of the person (the guardian) of a “person of unsound mind” in F v R (unreported, Supreme Court of NSW, Powell J, 2 May 1986), BC8601063, 7-9.

^[2] Guardianship Act 1987 (NSW) ss 16(2)(a) and 21(1)(a).

^[3] Ibid. ss 16(1) and 21(1).

^[4] Guardianship and Administration Act 1986 (Vic) s 24(1).

^[5] Ibid. s 25(1).

^[6] Ibid. s 24(2).

^[7] Guardianship and Administration Act 2000 (Qld) ss 33(1), 35 and 36 and Schedule 2, item 2 and Schedule 4.

^[8] VJC v NSC [2005] QSC 68 [29].

^[9] Guardianship and Administration Act 2000 (Qld) Schedule 2, s 2.

^[10] See, 7. 3. 1, . 2 and. 4, 7.5.2 and. 5 and .6 and 7. 5. 7. 1.

^[11] Guardianship and Administration Act 1990 (WA) s 45(1).

^[12] Ibid. s 46.

^[13] Ibid. s 45(2)(e) to (h).

^[14] See 7.5 and following.

^[15] Guardianship and Administration Act 1990 (WA) s 45(3).

^[16] See 7. 4 and following.

^[17] Guardianship and Administration Act 1990 (WA) s 49.

^[18] Guardianship and Administration Act 1993 (SA) s 31.

^[19] Ibid. s 32.

^[20] See 7. 5. 2.

^[21] Guardianship and Administration Act 1995 (Tas) s 25(1).

^[22] Ibid. s 26(1).

^[23] Ibid. s 25(2).

^[24] Guardianship and Administration Act 1986 (Vic) s 24(2).

^[25] Guardianship and Management of Property Act 1991 (ACT) s 7(2).

^[26] Guardianship and Administration Act 1986 (Vic) s 24(2).

^[27] Guardianship and Management of Property Act 1991 (ACT) s 7(3)(f).

^[28] Ibid. s 7B.

^[29] See 7. 4 and following.

^[30] Public Advocate Act 2005 (ACT) s 12. See also, McGregor and Pearce v The Hon John Gallop and the Attorney-General of the ACT [2002] ACTSC 45 [46]-[50].

^[31] Adult Guardianship Act 1988 (NT) s 17(1).

^[32] Ibid. s 18(1).

^[33] Ibid. s 18(2).

^[34] Guardianship and Administration Act 1986 (Vic) s 24(2).

^[35] Guardianship and Administration Act 2000 (Qld) s 34(1). See also Guardianship Act 1987 (NSW) s 4; Guardianship and Administration Act 1986 (Vic) s 4(2); Guardianship and Administration Act 1993 (SA) s 5; Guardianship and Administration Act 1995 (Tas) s 6; Guardianship and Management of Property Act 1991(ACT) s 5 and Adult Guardianship Act 1988 (NT) s 4(2).

^[36] Ibid. s 34(2). See also, for example, Guardianship Act 1987 (NSW) s 32.

^[37] Guardianship and Administration Act 2000 (Qld) s 35.

^[38] Guardianship and Administration Act 1990 (WA) s 51

^[39] Guardianship and Administration Act 1986 (Vic) s 28; Guardianship and Administration Act 1995 (Tas) s 27 and Adult Guardianship Act 1988 (NT) s 20.

^[40] Guardianship Act 1987 (NSW) s 4(a).

^[41] DON [2005] WASAT 193 [37] and [38] and Review of Guardianship Order for LGW (Unreported, Guardianship and Administration Board, 7 May 1004).

^[42] Guardianship Act 1987 (NSW) s 4(d).

^[43] Ibid. s 4(a).

^[44] Guardianship and Administration Act 1990 (WA) s 52(2)(e).

^[45] Guardianship and Administration Act 1986 (Vic) s 4(2); Guardianship and Administration Act 1995 (Tas) s 6 and Adult Guardianship Act 1988 (NT) s 4.

^[46] Re NB Mc & Guardianship Board (1989) 3 VAR 87, 89.

^[47] Guardianship and Administration Act 1986 (Vic) s 28(1); Guardianship and Administration Act 1995 (Tas) s 27(1) and Adult Guardianship Act 1988 (NT) s 20(1).

^[48] Guardianship and Administration Act 1986 (Vic) s 28(2)(e); Guardianship and Administration Act 1995 (Tas) s 27(2)(a) and Adult Guardianship Act 1988 (NT) s 20(2)(e).

^[49] Guardianship and Administration Act 1986 (Vic) s 28(1); Guardianship and Administration Act 1995 (Tas) s 27(1) and Adult Guardianship Act 1988 (NT) s 20(1).

^[50] Pearce, DC and Geddes RS, Statutory Interpretation in Australia, LexisNexis Butterworths, 6^th ed 2006, [4.32].

^[51] Guardianship and Administration Act 2000 (Qld) Schedule 1, item 7.

^[52] Guardianship and Management of Property Act 1991 (ACT) s 4(2).

^[53] Guardianship and Administration Act 1993 (SA) s 5(a).

^[54] Ibid. s 5(b).

^[55] Guardianship and Administration Act 2000 (Qld) s 36.

^[56] Guardianship Act 1987 (NSW) s 21C Guardianship and Administration Act 1995 (Tas) ss 25(3) and 26(2); Guardianship and Administration Act 1986 (Vic) s24(4); Guardianship and Administration Act 1990 (WA) s 50 and Adult Guardianship Act 1988 (NT) ss 17(4) and 18(3).

^[57] Guardianship and Management of Property Act 1991 (ACT) s 13.

^[58] Guardianship and Administration Act 2000 (Qld) s 45.

^[59] Guardianship and Management of Property Act 1991 (ACT) s 7B.

^[60] Guardianship and Administration Act 1990 (WA) s 45(1), (3), (4) and (5) .

^[61] Public Guardian v Guardianship Board (1997) 42 NSWLR 201and PL (Guardianship) [2007] VCAT 2485.

^[62] Guardianship Act 1987 (NSW) s 15(1).

^[63] Ex parte Lyttleton [1801] EngR 189; (1801) 31 ER 911; In re B (an alleged lunatic) [1891] UKLawRpCh 137; [1891] 3 Ch 274; M v M [1981] 2 NSWLR 334, 336; RH V CAH [1984] 1 NSWLR 694, 706-707.

^[64] Commonwealth Electoral Act 1918 (Cth) s 93(8). See also, for example, Parliamentary Electorates and Elections Act 1912 (NSW) s 21.

^[65] (1870) LR 5 QB 549.

^[66] See 4. 10.

^[67] Sheffield City Council v E [2004] EWHC 2808 (Fam) [100].

^[68] See 7. 3. 3. See also, Guardianship and Administration Act 1995 (Tas) s 27(2)(b); Guardianship and Administration Act 1986 (Vic) s 28(2)(a); Guardianship and Administration Act 1990 (WA) s 51(2)(a) and Adult Guardianship Act 1988 (NT) s 20(2)(a).

^[69] See for example, Matter No. 97/0696 (unreported, Guardianship Board, 21 March 1997).

^[70] Guardianship and Administration Act 2000 (Qld) Schedule 2 s 2(a); Guardianship and Administration Act 1995 (Tas) s 25(2)(a); Guardianship and Administration Act 1986 (Vic) s 24(2)(a); Guardianship and Administration Act 1990 (WA) s 45(2)(a); Guardianship and Management of Property Act 1991 (ACT) s 7(3)(a) and Adult Guardianship Act 1988 (NT) s 17(2)(a).

^[71] For NSW see, Guardianship Act 1987 (NSW) s 21(1)(b). See also s 21(2A). For South Australia see, Guardianship and Administration Act 1993 (SA) s 31.

^[72] For an example see, MJ and MWT [2006] WASAT 59.

^[73] Guardianship Act 1987 (NSW) s 21A(1).

^[74] Ibid. s 21A(2).

^[75] Re JD [2003] QGAAT 14.

^[76] Ibid. [37].

^[77] See 7. 5. 7.

^[78] Guardianship and Administration Act 1995 (Tas) s 28; Guardianship and Administration Act 1986 (Vic) s 26.

^[79] Guardianship and Administration Act 1993 (SA) s 32.

^[80] Carter No. DCAAT-97-64 [1997] SADC 3655. For other cases about s 32 of the Guardianship and Administration Act 1993 (SA) see, Robinson v Guardianship Board [1999] SADC 12 and S, P v Guardianship Board [2006] SADC 38.

^[81] Guardianship and Administration Act 1993 (SA), s 32(6).

^[82] Ibid. s 32(7).

^[83] BAH [2007] NSWGT 1 [108].

^[84] Ibid. [109].

^[85] Ibid. [107].

^[86] FI v Public Guardian [2008] NSWADT 263.

^[87] The earlier case was WK v Public Guardian (No 2) [2006] NSWADT 121. FI v Public Guardian [2008] NSWADT 263, [1]-[2].

^[88] FI v Public Guardian [2008] NSWADT 263, [46].

^[89] Ibid. [47].

^[90] Ibid [50].

^[91] Ibid [51].

^[92] BAH [2007] NSWGT 1 [124]. For an application of the BAH approach see, KAT [2007] NSWGT 7. See also YID [2007] NSWGT 19 and QAN [2008] NSWGT 19..

^[93] Ibid. [125].

^[94] Ibid. [126].

^[95] F v R (unreported, Supreme Court of NSW, Powell J, 2 May 1986, BC8601063, 8-9).

^[96] Guardianship and Management of Property Act 1991(ACT) Part 2A.

^[97] For an example see, RJC [2006] WASAT 279.

^[98] For an example see, In the matter of Elizabeth M 30 A.D. 3d 780 (2006).

^[99] Guardianship and Management of Property Act 1991 (ACT) s 8AB and Powers of Attorney Act 2006(ACT) s 75.

^[100] [2006] QGAAT 11.

^[101] Ibid. [22]-[23] and [28].

^[102] Ibid. [27].

^[103] Guardianship Act 1987 (NSW) s 20(2A); Guardianship and Administration Act 1995 (Tas) s 25(3); Guardianship and Administration Act 1986 (Vic) s 24(4); Guardianship and Administration Act 1990 (WA) s 50.

^[104] For an example of the NSW Guardianship Tribunal giving a guardian appropriate authority see, DQE (No. 2) [2007] NSWGT 9.

^[105] Guardianship and Administration Act 1990 (WA) s 49.

^[106] Guardianship and Administration Act 1990 (WA) s 52(2)(d).

^[107] Ibid. s 47.

^[108] Ibid. s 49(1)(b).

^[109] Hodak v Newman [1993] FamCA 83; (1993) 17 Fam LR 1; Rice v Miller (1993) 16 Fam LR 970; Re Evelyn [1998] FamCA 55; (1998) 23 Fam LR 53.

^[110] VJC v NSC [2005} QSC 68 [29]. See, Guardianship and Administration Act 2000 (Qld) Schedule 2, s 2.

^[111] RH v CAH [1984] 1 NSWLR 694.

^[112] LA [2006] WASAT 297 [2] and [3].

^[113] Ibid. [37], [45] and [46].

^[114] For an example see, the Tasmanian Guardianship and Administration Board’s decision, HDH – Guardianship – 9-6-05 (www.guardianship.tas.gov.au/decisions).

^[115] GLM (Guardianship) [2007] VCAT 2487.

^[116] Matter No. 2006/6707 (unreported, Guardianship Tribunal, 3 November 2006) and Matter No. 2006/3088 (unreported, 2 June 2006)..

^[117] International Psychogeriatric Association (IPA) Behavioral and Psychological Symptoms of Dementia (BPSD) Educational Pack Module 1 2002 International Psychogeriatric Association.

^[118] Ibid., Module 5.,

^[119] Opie J, Rosewarne R, O’Connor DW, “The efficacy of psychosocial approaches to behaviour disorders in dementia: a systematic literature review”, Aust NZ J Psychiatry, 1999; 33(6):789-99

^[120] International Psychogeriatric Association (IPA) op. Cit (footnote 117), Module 5.

^[121] Ibid., Module 6

^[122] Ibid.

^[123] See for example, EAN [2009] NSWGT 10.

^[124] Guardianship Act 1987 (NSW) s 4. See Position Statement on Management of Challenging Behaviours in People with Dementia and Position Statement on Behaviour Intervention and Support in applications relating to a person with an intellectual disability on the NSW Guardianship Tribunal’s website, www.gt.nsw.gov.au.

^[125] Re JD [2003] QGAAT 14.

^[126] Ibid. [32].

^[127] Regina v Ashworth Hospital Authority ex parte Munjaz [2005] UKHL 58 [103]. Also reported as Regina (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148.

^[128] Ibid. [50].

^[129] Munjaz v Mersey Care National Health Service Trust [2003] EWCA Civ 10, [46].

^[130] Ibid. [46]. In re F [1991] UKHL 1; [1990] 2 AC 1.

^[131] Munjaz v Mersey Care National Health Service Trust [2003] EWCA Civ 10, [47].

^[132] NSW Guardianship Tribunal Position Statement on Managing Challenging Behaviours in People with Dementia, 2005 and Position Statement Behaviour Intervention and Support in applications relating to a person with an intellectual disability, March 2006.

^[133] Re application for a guardianship order (BCB) (2002) 28 SR (WA) 338.

^[134] Ibid. 353.

^[135] JP [2008] WASAT 3.

^[136] Darcy v State of New South Wales [2010] NSWDC 210.

^[137] Ibid. [102].

^[138] Disability Act 2006 (Vic) s 3.

^[139] Ibid.

^[140] Ibid. s 138

^[141] Ibid. s 144.

^[142] Ibid. s 146.

^[143] Disability Services Act 2006 (Qld) s 123E.

^[144] Ibid. S 123D. For an example of an appointment of a guardian for restrictive practices in Queensland see, Re MAN [2008] 97.

^[145] Re AAG [2009] QGAAT 43.

^[146] HH v HI and the Protective Commissioner [2009] NSWADTAP 41.

^[147] Guardianship Act 1987 (NSW) s 5 (b) and (f).

^[148] HH v HI and the Protective Commissioner [2009] NSWADTAP 41 [26].

^[149] Ibid. [38].

^[150] Ibid. [38].

^[151] Ibid. [19]-[23].

^[152] AA (Guardianship) [2006] VCAT 1957. For an example from NSW see, Matter No 2004/5028 (unreported Guardianship Tribunal, 15 September 2004).

^[153] GY [2005] WASAT 186.

^[154] Military Rehabilitation and compensation Commission v SRGGGG [2005] FCA 342.

^[155] UAP [2007] NSWGT 18.

^[156] TAD [2007] NSWGT 20.

^[157] Person X [2008] NSWGT 20.

^[158] Guardianship and Administration Act 2000 (Qld) s 45; Guardianship Act 1987 (NSW) s 21B; Guardianship and Administration Act 1986 (Vic) s 29; Guardianship and Administration Act 1990 (WA) s 50; Adult Guardianship Act 1988 (NT) s 20(3).

^[159] Guardianship and Administration Act 2000 (Qld) s 46.

^[160] Ibid. s 44.

^[161] Guardianship Act 1987 (NSW) s 21C; Guardianship and Administration Act 1995 (Tas) ss 25(3) and 26(2); Guardianship and Administration Act 1986 (Vic) ss 24(4) and 25(3); Guardianship and Administration Act 1990 (WA) s 50; Guardianship and Management of Property Act 1991 (ACT) s 13 and Adult Guardianship Act 1988 (NT) ss 17(4) and 18(3).

^[162] [1984] 1 NSWLR 694.

^[163] Ibid. 708-709.

^[164] Guardianship and Administration Act 2000 (Qld) s 82(1)(d); Guardianship Act 1987 (NSW) ss 26-31; Guardianship and Administration Act 1993 (SA) s 74; Guardianship and Administration Act 1995 (Tas) s 31; Guardianship and Administration Act 1986 (Vic) s 30; Guardianship and Administration Act 1990 (WA) s 13(b).

^[165] Guardianship and Administration Act 2000 (Qld) s 82(1)(d) and Guardianship and Administration Act 1990 (WA) s 13(b).

^[166] Guardianship and Administration Act 2000 (Qld) s 82(1)(d).

^[167] Ibid. s 115 and Schedule 4.

^[168] Guardianship Act 1987 (NSW) ss 26 and 28.

^[169] Guardianship and Administration Act 1993 (SA) s 74.

^[170] Ibid. s 74(3).

^[171] Ibid. s 74(1).

^[172] Guardianship and Administration Act 1995 (Tas) s 31(4).

^[173] Ibid. s 31(1)-(3).

^[174] Ibid. s 31(5).

^[175] Guardianship and Administration Act 1986 (Vic) s 30(1) and (3).

^[176] Ibid. s 31(4).

^[177] Re WFM [2006] QGAAT 54.

^[178] Ibid. [13].

^[179] Ibid. [23], [24] and [27].

^[180] Ibid. [33].

^[181] Re WAC [2007] QGAAT 15.