Guardianship Law: a human rights approach

As a disability rights lawyer who represents people with disabilities and their families every day, I know that there is often a lot of confusion and fear around guardianship laws; especially about why they exist. This article is designed to fill you in on how these laws came to be and what role they have in a modern Australia that acknowledges the human rights of people with disability.

In Australia, a person has the right to make their own decisions and it is presumed, at the level of the law, that a person can do so. However, guardianship and administration laws around the country remove that right where a person is not considered able to make decisions for themselves. These laws invoke a substitute decision-making model where a person or statutory officer like the Public Guardian is appointed to make legal decisions for a person. The substitute decision-maker can be in place for years at a time and can be empowered to make all legal decisions for a person, be it healthcare, lifestyle, accommodation or financial and legal decisions. These legislative regimes, which differ from state to state, are draconian.

The legal removal of decision-making rights from people with disabilities, specifically those with intellectual disabilities and cognitive impairments, stretches back to Roman law, which developed in medieval England where “responsibility for the mentally disordered law first with the church and the lord of the manor”. In those days, “… the king had the custody of the person and lands of those born with an intellectual disability during their lifetime …”[1]. You can see that since their inception, these laws have been aimed at people with intellectual disabilities and cognitive impairment, creating significant structural disadvantages and the consistent removal of their rights over the course of history.

In Australia, guardianship and administration laws as we know today them came over on the invading boats. In 1823, the first version of this type of law in an Australian context was created and read “… we do hereby authorise the Supreme Court to appoint … guardians, and keepers of the persons and estates of natural fools, and of such as are or shall be deprived of their understanding or reason by act of God, so as to be unable to govern themselves and their estates …”[2]. This is the disturbing, and in today’s language, ableist, foundation on which current guardianship and administration laws have been built. Guardianship and administration laws as we know them today were established between 1986 and 2000.[3] Victoria acted first in 1987, establishing an independent guardianship tribunal and creating a statutory Public Advocate, and Queensland finished the nationwide modernisation of guardianship laws (except for the Northern Territory[4]) in 2000.[5] The simple passage of time that has brought with it an advancing of the recognition of disability rights in Australian law and society, leaves current guardianship and administration laws as relics of an era that no longer exists. Since 2000, there have been two key milestones in the disability rights movement in Australia from a legal perspective: Australia’s ratification of the UN Convention on the Rights of People with Disabilities in 2008 and the enactment of the National Disability Insurance Scheme Act 2013 (Cth). These instruments are important indicators of Australia moving toward the realisation of the human rights of people with disabilities. From a public policy perspective, Australia has had two National Disability Strategies since 2000[6], both of which aim to ensure that all levels of the Australian government pursue  disability rights principles through their legislative and policy making endeavours. As a result, we have an overall legal and public policy framework that recognises the rights of people with disabilities beyond those allowed under current guardianship and administration laws. So, you can see how it is perplexing to folks who work with people with disabilities and have a current understanding of their rights to then come across guardianship and administration laws and need to grapple with how to properly work inside the confines of these draconian instruments.

You are not alone; in 2014, the Australian Law Reform Commission[7] recommended that a supported decision-making model be introduced into law to move us away from having a binary system where a person either makes decisions for themselves or has a substitute decision maker. Under a supported decision-making model, a person is supported to make decisions for themselves rather than defaulting to a person being appointed to make decisions for them. Having this model would better reflect current understandings of disability rights and realise the rights of people with disabilities in a way that we would all expect. Unfortunately, the recommendations made in 2014 have not been adopted to date.

Having canvased the current approach to guardianship and administration laws in Australia, it is typical of the NDIS that they have their own approach for those who are not able to make decisions about their access to or plans for the Scheme! Separate from guardianship laws, the NDIS has set up a nominee structure[8]. Plan or correspondence nominees can be appointed by the NDIA CEO[9] and, in that role, can carry out decisions for a participant with respect to their NDIS plan or correspondence with the NDIA. A nominee does not have to be a guardian under state laws.[10] A guardian is not required to be appointed under state law for a nominee to be appointed under the NDIS Act.[11] Unlike guardianship appointments under state law, where there are few guidelines on the expectations of the conduct of a guardian, how an NDIS nominee is expected to act is outlined in Part 5 of the Nominee Rules[12]. So, while the two models may look similar, there are important legal differences that should be considered in each individual circumstances.

For those working with people with disabilities at the interface of where they may make decisions – for example about where they want to live or what services they receive (guardianship laws) or about their NDIS Plan (NDIS Nominee) – a human rights approach would include the following considerations:

1. Why is the person finding it difficult to make their own decisions? Is there support that can be wrapped around the person to better facilitate the decision-making process?
2. What are the legal responsibilities of the person being required to make the decision and of the person supporting them in making a decision?
3. Can the person needing to make the decision be referred to an independent lawyer or advocate to get confidential advice on their situation before action is taken?

In answering these questions, consider the following principles:

1. Assume that a person can make their own decisions (even if informal support is needed).
2. Substitute decision-making should be used as a last resort, always (or really, in my view, just avoid it wherever possible).
3. If a person needs a guardianship or administration order (or an NDIS nominee, for that matter), ensure that the person has access to independent legal and advocacy help so they can know their rights from the outset.

[1] O’Neill, Nick; Peisah, Carmelle “Capacity and the Law” (2011) Sydney University Press, page 2.

[2] O’Neill, Nick; Peisah, Carmelle “Capacity and the Law” (2011) Sydney University Press, page 3.

[3] O’Neill, Nick; Peisah, Carmelle “Capacity and the Law” (2011) Sydney University Press, page 11.

[4] The Northern Territory Government introduced the Adult Guardianship Act in 1988 as a transitional Act to allow Magistrates to appoint guardians for people with intellectual disabilities. The Northern Territory have not moved to a modern approach where a guardianship tribunal is established under law as in other States. For a full commentary on this point, see O’Neill, Nick; Peisah, Carmelle “Capacity and the Law” (2011) Sydney University Press, page 11.

[5] O’Neill, Nick; Peisah, Carmelle “Capacity and the Law” (2011) Sydney University Press, page 7.

[6] National Disability Strategy 2010 – 2020 and Australia’s Disability Strategy 2021 – 2031.

[7] See Equality, Capacity and Disability in Commonwealth Laws (https://www.alrc.gov.au/wp-content/uploads/2019/08/alrc_124_whole_pdf_file.pdf).

[8] National Disability Insurance Scheme Act 2013 (Cth), s 86 and 87.

[9] National Disability Insurance Scheme Act 2013 (Cth), s 86 and 87.

[10] NDIS Operational Guideline – Appointing a Nominee, “how we work with legally appointed decision makers”.

[11] National Disability Insurance Scheme Act 2013 (Cth), s 86 and 87; NDIS Operational Guideline – Appointing a Nominee, “how we work with legally appointed decision makers”.

[12] National Disability Insurance Scheme (Nominees) Rules 2013 (Cth).