Guardianship is relevant to much of the systemic advocacy undertaken by OPA’s Policy and Research Unit. Data and information from the Advocate Guardian Program is crucial to informing OPA’s projects in this area.
The Policy and Research Unit has produced a wide variety of publications on the topic of guardianship, including contributing to the development of resources to ensure that health services into the future make better and more appropriate usage of the guardianship system. This drew from earlier research into the impact of the ageing population on the provision of guardianship services.
A major part of OPA’s policy work is undertaken with a view to improve Victoria’s guardianship law to better protect the rights, interests and dignity of people with disability. OPA continues to advocate for reforms to improve the law drawing extensively from our submissions to the review of the Guardianship and Administration Act 1986.
AREAS OF ACTION
Complexity in guardianship
OPA’s Advocacy and Guardianship Program is facing challenges due to increasingly complex matters. This results in people under guardianship waiting longer for decisions to be made. This report looks at guardianship and investigation matters over the past seven years to explore the trend for increasing complexity. As the disability sector changes in the coming years, understanding these trends will help OPA position itself to confront the expected challenges.
Guardianship in hospital
Due to increasing complexity of cases handled by the advocate guardian program, waiting times for allocation to a guardian have increased. OPA's 2015 report looks at the growing complexity of guardianship matters for people in hospital, and the cost to the health system of people waiting for a guardian to be appointed to make a decision about their discharge from hospital.
Guardianship and older Victorians
The impact of an ageing population on the provision of guardianship is of concern in Australian guardianship circles. The numbers of older Australians requiring guardianship because of cognitive disabilities is predicted to rise.
In response, OPA has produced Guardianship and the ageing population: Profile of Victorian guardianship clients aged over 65 years. The report provides greater understanding of the characteristics of those over 65 with an appointed guardian and what distinguishes them from those over 65 with cognitive disabilities for whom a guardian is not appointed. For example, it is more likely that a person over 65 will be in hospital or residential care when the application is made, rather than at home.
Health or community sector professionals make most applications for a guardianship order when the person with a disability is faced with a situation involving a significant and difficult change of circumstances. Where there is adequate community, family and service support available for a person with a disability, guardianship applications are not generally made.
The OPA report, Decisions concerning the discharge from hospital of Victorian guardianship clients aged 65 years and over, highlights that the appointment of guardians for people aged 65 and over being discharged from hospital represents a significant proportion of OPA’s work.
With the ageing population, this workload is likely to increase. Significant delays can occur in determining what is best and older people may remain in hospital for many months prior to and after the appointment of an Advocate Guardian. This brings undue hardship for the older person and is a significant financial burden on the Victorian healthcare system. The Supported Discharge Planning Project (see Hospitals tab) looked at mitigating some of these negative impacts.
OPA supports the reform of Victoria’s guardianship law to better promote and protect the rights, interests and dignity of people with disability.
The reports, Too much guardianship? Reflections on guardianship 1988 - 2008 and Guardianship trends in Victoria 1988 - 2008 reveal that since the introduction of the Guardianship and Administration Act in 1986, guardianship numbers in Victoria have grown exponentially. This is driven by deinstitutionalisation, reductions in accessibility and availability of services, and society’s increasing adversity to risk. The unremitting rise in guardianship cases continues requiring OPA to adapt to increasing and extremely high caseloads.
Principles and values in Victorian guardianship legislation was prepared to inform the development of principles to be contained in proposed new guardianship legislation.
OPA proposed a new overarching principle of guardianship, that a guardian must act in a way that promotes the personal and social wellbeing of the represented person. This principle has since been included in various legislation and policy documents, including in the National Disability Insurance Scheme Act 2013.
Victorian Law Reform Commission review of the Guardianship and Administration Act 1986
The review of the Guardianship and Administration Act 1986 by the Victorian Law Reform Commission is important to people with disability because this legislation enables the appointment of a guardian or administrator.
OPA has extensive expertise of the operation of the Guardianship and Administration Act 1986. As the guardian of last resort and the holder of specific investigative powers under this legislation, the Public Advocate and staff have unique experiences to draw upon. The legislation would be substantially improved by broadening power of attorney laws to promote greater supported decision making, creating co-decision-making orders in certain circumstances instead of standard guardianship orders, and broadening the power of OPA to investigate potential abuse, exploitation or neglect.
Continuation of substitute decision-making laws remains important and alternative supported decision making initiatives should be resourced. See OPA’s submissions to the review’s Guardianship Information Paper and Guardianship Consultation Paper for more information.
OPA’s supports most of the 440 recommendation made by the Victorian Law Reform Commission in its final report. We remain concerned about a small number of recommendations. These are the automatic operation of advance refusals of medical treatment that relate to future medical conditions, redefining the ‘need’ for guardianship, deprivations of liberty, and psychiatric treatment decisions. For more information, see OPA's response to the final report.
Supported Discharge Planning Project
When discharging older people from hospitals, there are often complex decisions to make and pressures to make them as quickly as possible. Applications for guardianship are sometimes, but not always, necessary to resolve these issues in the person’s best interests.
To better support health professionals with these matters, including helping them determine whether a guardianship order is necessary or if less restrictive options are available, OPA and the then Victorian Department of Health established the Health Services Guardianship Liaison Officer (HSGLO) position in 2013 as part of a two-year pilot project.
The HSGLO worked with Victorian health services to:
- improve decision-making processes related to guardianship applications
- improve discharge options and timelines for people with disability where guardianship issues are raised
- make timely decisions for older people with complex discharge planning needs
- explore less-restrictive models of care and pathways for older patients accessing Victorian health services
- develop and deliver ‘less-restrictive models of care’ education sessions for Victorian health services
- develop a toolkit resource for Victorian health services.
The toolkit will be available in mid-2016 on the Department of Health and Human Services website.