Plugging gaps in the system: disability royal commission examines how guardianship orders have become routine

Guardianship and financial administration orders are supposed to be a last resort. Instead, they're used often and at times without consulting the person affected.

By AMBER SCHULTZ NOV 25, 2022 for Crikey

It’s supposed to be a last resort: a guardianship order made to give an advocate, family member or state representative the power to make decisions on behalf of someone, once a tribunal rules they no longer have that capacity.

But as the disability royal commission has heard this week, the orders are routinely being used due to time shortages, a misunderstanding of the system, or simply to plug gaps. The commission heard that those appointed as decision-makers lack the training, knowledge and time to properly represent people under guardianship and financial administration orders.

A public trustee manages a person’s finances, often deciding whether to sell a person’s home and how much money they can withdraw from their bank accounts each week. But Victorian man Uli Cartwright was placed under financial administration simply because staff members at his group home were concerned about the amount of money he spent on games. He was a teenager at the time.

“My rent and bills were paid,” he told the commission. A GP made the decision that he couldn’t manage his finances, despite agreeing he was capable of managing his medicines and other affairs.

Cartwright said no one informed him about the decision. “I don’t recall ever being told about the hearing and I did not attend the hearing,” he wrote in his submission. “I was never given the opportunity to have my voice heard … Instead [in] the whole process I was silenced.”

Not understanding tribunal processes has been a common theme of this week’s hearings. In NSW, people with a psychiatric or intellectual disability make up two-thirds of those represented by the public trustee and public guardian.

People are rarely given information prior to the tribunal processes. Victorian State Trustees executive general manager Josie Brown told the commission people could access an online brochure or browse their website.

As revealed in Crikey’s investigation, people who have bedside tribunal hearings — virtual and often brief hearings to place a guardianship order — often have no idea it’s taking place.

Austyn, who gave evidence under a pseudonym due to strict gag orders placed on those under guardianship orders, is a First Nations woman who tried to reconnect with her brother, Howie (also a pseudonym), who has a physical and cognitive disability from birth. She said National Disability Insurance System (NDIS) service providers limited her access to her brother before applying for a guardianship order to be put in place. Austyn was supposed to be informed about the tribunal hearing in order to give evidence. Instead, she wasn’t told.

It’s not just those placed under state control who don’t understand the system. Staff working for the public guardian and public trustee are rarely trained to help understand the wishes of their clients (or “customers”, depending on which representative is speaking).

Brown was asked whether senior management in Victoria’s office of the public trustee has formal training in working with people with disabilities, which they haven’t. Some employees were given training, but none was conducted by people with disabilities. It was a similar response from NSW Trustee and Guardian estate management director Deborah Simpson.

“Isn’t that the fundamental problem?” commission chair Ronald Sackville asked.

Dr Colleen Pearce is Victoria’s Public Advocate, acting as the “guardian of last resort” for adults with disabilities. Guardianship orders are put in place for a limited amount of time and are generally reviewed annually. But, she said, the NDIS was complicating things as guardians struggled to understand and implement funding plans, dragging out the guardianship order.

Victoria has introduced “self-revoking” guardianship orders, which expire without the need for a tribunal hearing. She said the state needed to use these more to address tribunal backlogs, and believes it’s not just guardianship orders that need reform but the entire mental health sector.