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Executive Summary
Foreword
Shortened forms
Ch 1. Introduction
Ch 2. Methodology
Ch 3. Legal issues
Mental health care system-related legal issues
Adult guardianship
Disability discrimination
Criminal legal issues
Housing issues
Social security issues
Consumer issues
Family law issues
Care and protection issues
Victim of crime issues
Summary
Ch 4. Barriers to accessing legal assistance
Ch 5. Participation in the legal system
Ch 6. Non-legal support
Ch 7. Discussion and conclusion
References
Appendices
Acknowledgements
Access to justice and legal needs research program: Terms of reference
Publishing details
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On the edge of justice: the legal needs of people with a mental illness  ( 2006 )  Cite this report

Ch 3. Legal issues

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Adult guardianship


Guardianship is the management of an individual’s personal affairs in the event that they lose the capacity to manage their affairs themselves. Individuals (such as a person with dementia) may appoint their own “enduring guardian”, before they lose capacity, to make lifestyle and medical decisions on their behalf once they lose capacity.13 A person can also appoint a person to manage their financial and property affairs by drawing up an enduring power of attorney (EPA), which comes into effect when capacity is lost.14 The Guardianship Tribunal is a legal tribunal that has the power to appoint a guardian or a financial manager in the event that a person is not able to make their own decisions.15 In the event that an EPA or other instrument has not been executed, a private guardian, a friend or family member may be appointed by the Guardianship Tribunal to make decisions on behalf of the person. Under the Protected Estates Act 1983 (NSW), the Mental Health Review Tribunal and the Supreme Court of NSW Equity Division—Protective also have the jurisdiction to appoint a financial manager.

In circumstances where no private guardian is available or suitable for appointment, the Office of the Public Guardian (OPG) may be appointed to act as guardian and to make decisions relating to the person’s medical, dental and accommodation needs (but not their financial needs).16 In the absence of an authority under an EPA or appointment of a suitable person as financial guardian, the Office of the Protective Commissioner (OPC) will be appointed to manage a person’s financial affairs.17 The OPC can also be appointed to manage a person’s financial affairs where they have problems doing so themselves as a result of disability (such as mental illness, dementia, intellectual disability, brain injury).18 For example, the OPC may be made a prescribed nominee by Centrelink to receive and manage a person’s social security benefits.19 Four participants interviewed for this study reported having their financial affairs managed by the OPC.20

The only issue raised in this study relating to guardianship and financial management was where clients placed under a financial management order wished to challenge it or have the order removed. A solicitor from the OPC reported that people who are the subject of financial management orders can develop a lot of anger and resentment as a result of being under such an order, because of the restrictions these place upon what a person can do with their finances.21 People under financial management orders may seek to challenge these orders because they want greater control over their money.22 Although most financial management orders are indefinite, people can appeal to the Guardianship Tribunal for the order to be revoked.23

Three participants who were the subjects of financial management orders felt that they did not receive enough money from the OPC to live on each week and that it was very difficult to obtain additional money for emergencies and further expenses:

    I thought they were a little bit hard on me because they didn’t give me enough money.24

    It’s like getting blood from a stone.25

    I am currently underneath the Protective Office and they can control my finances … It’s really hard because I have nearly over $2000 in my account and they are not letting me have it. They give me $360 a fortnight. They expect me to be able to go to the Salvation Army to get clothes … and being homeless it’s really hard.26

In a 2001 review of the OPC, the NSW Parliament Public Bodies Review Committee said that one of the ongoing challenges facing the OPC is the quality of relations between clients and staff members.27 The review argued that OPC clients and their families reported communication problems that included difficulties contacting OPC staff on the phone, long delays in officers responding to inquiries as well as perceived rudeness on the part of staff.28 Although acknowledging the difficulties highlighted by the OPC in balancing the direct wishes of a client with their overall best interests, the review recommended that the OPC specifically address the quality of client contact.29

Following the NSW Auditor General’s Performance Audit of the Review of the Office of the Protective Commissioner and Office of the Public Guardian Complaints and Review Processes, in 1999, and its 2003 follow-up audit, both the OPG and the OPC have implemented internal and external appeals mechanisms.30 Clients of both agencies can request an internal review of a decision made by either the OPG or the OPC.31 Following this, decisions can be reviewed externally by the Administrative Decisions Tribunal.32



Guardianship Tribunal NSW, Planning Ahead. Enduring Power of Attorney, http://www.gt.nsw.gov.au/information/doc_44_enduring_power_of_attorney.htm#whatis (accessed October 2004).
Guardianship Tribunal, Planning Ahead.
MHCC, The Mental Health Rights Manual, p. 64.
Office of the Public Guardian (OPG), Common Questions, <http://www.lawlink.nsw.gov.au/lawlink/opg/ll_opg.nsf/pages/OPG_faq> (accessed August 2005).
Office of the Protective Commissioner (OPC), What We Do, <http://www.lawlink.nsw.gov.au/lawlink/office_of_the_protective_commissioner/opc_ll.nsf/pages/OPC_whatwedo> (accessed August 2005).
OPC, What We Do.
The Independent Social Security Handbook, National Welfare Rights Network, Sydney, 2005, <www.welfarerights.org.au/issh> (accessed November 2005), para 9.3.4.
Interviews nos. 3, 9, 10 and 27 (taken from the Foundations study into homeless people).
Consultation with solicitor, OPC, September 2004.
Consultation with social worker, Mental Health Advocacy Service (MHAS), August 2004.
MHCC, The Mental Health Rights Manual, p. 73.
Interview no. 3.
Interview no. 10.
Interview no. 27 (taken from the Foundations study into homeless people).
NSW Parliament Public Bodies Review Committee, Personal Effects: A Review of the Offices of the Public Guardian and the Protective Commissioner, Parliament of NSW, Sydney, 2001, p. 57. Also T Carney, Challenges to the Australian Guardianship and Administration Model, Elder Law Review, vol. 2, 2003, pp. 113 at p. 4.
NSW Parliament Public Bodies Review Committee, Personal Effects, p. 59.
NSW Parliament Public Bodies Review Committee, Personal Effects, p. 66.
NSW Auditor General, Performance Audit: Office of the Protective Commissioner and Office of the Public Guardian Complaints and Review Processes, NSW Audit Office, Sydney, 1999, NSW Auditor General, Follow-up of Performance Audits: Office of the Protective Commissioner and Office of the Public Guardian Complaints and Review Processes, NSW Audit Office, Sydney, 2003.
OPG, Making a Complaint, <http://www.lawlink.nsw.gov.au/lawlink/opg/ll_opg.nsf/pages/OPG_forms#appeal> (accessed February 2006), OPC, Feedback, Complaints and Reviews of Decisions, <http://www.lawlink.nsw.gov.au/lawlink/office_of_the_protective_commissioner/opc_ll.nsf/pages/OPC_feedbackcomplaints> (accessed February 2006).
NSW Administrative Decisions Tribunal, Administrative Decisions TribunalGuardianship and Protected Estates List, General Division, <http://www.lawlink.nsw.gov.au/lawlink/adt/ll_adt.nsf/pages/adt_guardianship#PE2> (accessed February 2006).
13  Guardianship Tribunal NSW, Planning Ahead. Enduring Power of Attorney, http://www.gt.nsw.gov.au/information/doc_44_enduring_power_of_attorney.htm#whatis (accessed October 2004).
14  Guardianship Tribunal, Planning Ahead.
15  MHCC, The Mental Health Rights Manual, p. 64.
16  Office of the Public Guardian (OPG), Common Questions, <http://www.lawlink.nsw.gov.au/lawlink/opg/ll_opg.nsf/pages/OPG_faq> (accessed August 2005).
17  Office of the Protective Commissioner (OPC), What We Do, <http://www.lawlink.nsw.gov.au/lawlink/office_of_the_protective_commissioner/opc_ll.nsf/pages/OPC_whatwedo> (accessed August 2005).
18  OPC, What We Do.
19  The Independent Social Security Handbook, National Welfare Rights Network, Sydney, 2005, <www.welfarerights.org.au/issh> (accessed November 2005), para 9.3.4.
20  Interviews nos. 3, 9, 10 and 27 (taken from the Foundations study into homeless people).
21  Consultation with solicitor, OPC, September 2004.
22  Consultation with social worker, Mental Health Advocacy Service (MHAS), August 2004.
23  MHCC, The Mental Health Rights Manual, p. 73.
24  Interview no. 3.
25  Interview no. 10.
26  Interview no. 27 (taken from the Foundations study into homeless people).
27  NSW Parliament Public Bodies Review Committee, Personal Effects: A Review of the Offices of the Public Guardian and the Protective Commissioner, Parliament of NSW, Sydney, 2001, p. 57. Also T Carney, Challenges to the Australian Guardianship and Administration Model, Elder Law Review, vol. 2, 2003, pp. 113 at p. 4.
28  NSW Parliament Public Bodies Review Committee, Personal Effects, p. 59.
29  NSW Parliament Public Bodies Review Committee, Personal Effects, p. 66.
30  NSW Auditor General, Performance Audit: Office of the Protective Commissioner and Office of the Public Guardian Complaints and Review Processes, NSW Audit Office, Sydney, 1999, NSW Auditor General, Follow-up of Performance Audits: Office of the Protective Commissioner and Office of the Public Guardian Complaints and Review Processes, NSW Audit Office, Sydney, 2003.
31  OPG, Making a Complaint, <http://www.lawlink.nsw.gov.au/lawlink/opg/ll_opg.nsf/pages/OPG_forms#appeal> (accessed February 2006), OPC, Feedback, Complaints and Reviews of Decisions, <http://www.lawlink.nsw.gov.au/lawlink/office_of_the_protective_commissioner/opc_ll.nsf/pages/OPC_feedbackcomplaints> (accessed February 2006).
32  NSW Administrative Decisions Tribunal, Administrative Decisions TribunalGuardianship and Protected Estates List, General Division, <http://www.lawlink.nsw.gov.au/lawlink/adt/ll_adt.nsf/pages/adt_guardianship#PE2> (accessed February 2006).


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Karras, M, McCarron, E, Gray, A & Ardasinski, S 2006, On the edge of justice: the legal needs of people with a mental illness in NSW, Law and Justice Foundation of NSW, Sydney