Time to overhaul state's guardianship laws

THE starkest indication that Australia has an ageing population is in a single medical fact: dementia is now the leading cause of disability in this country. And as we report on our Focus page today, it is a fact with consequences that extend well beyond the need to provide physical care to those who can no longer care for themselves. When Victoria's Guardianship and Administration Act was passed in 1986, its intended beneficiaries were people with intellectual disabilities, who at the time were increasingly moving out of institutions to live in the community. The act allowed the appointment of guardians to make decisions they could not make for themselves. That process has generally worked well, as has an institution created by the act for those unable to appoint a private guardian, the Office of the Public Advocate. In the course of 26 years, however, the range of people in need of guardianship has grown much wider than the drafters of the act were able to foresee.

As the Victorian Law Reform Commission notes in a report on the state's guardianship laws released earlier this year, impaired decision-making capacity is not an all-or-nothing concept. Those afflicted by it may be able to make some decisions by themselves while needing help with others, and the impairment may have several causes. It may arise from an intellectual disability the person has had since birth it may result from an accident or trauma from which the person might recover or it may be caused by the onset of dementia, with the level of impairment increasing gradually. Each of these requires a different response, which the existing law does not readily provide.

Since more than half of the people who now require guardianship have at some stage had a capacity to decide independently, the 440 recommendations in the commission's report include proposals for new forms of response to mental impairment. If the proposals become law, it will be possible to appoint "supporters" to help people make decisions, and the Victorian Civil and Administrative Tribunal will be able to authorise "co-decision-making" arrangements, under which a person being supported would not be excluded from the decision-making. The scope of these arrangements would vary considerably according to circumstances: they could refer to health or financial matters, or both.

The need to broaden the kinds of guardianship available, and to provide greater scrutiny of guardianship practices, is not only a recognition that there are different levels of impairment. Last year the managing director of State Trustees, Tony Fitzgerald, brought to public attention the fact that financial abuse of older people is increasing as Australians of the baby-boom generation move into their retirement years. A blatant and distressing case of such abuse, affecting the distinguished astronomer Albert Shimmins, is detailed in our Focus story. But Mr Fitzgerald was able to cite numerous examples, in which family or carers misappropriated funds from bank accounts, used powers of attorney to redirect pensions to other accounts or, in some cases, stole cash from safe-deposit boxes or sold homes below market value.

Many victims of the abuse of power of attorney are older women suffering from dementia. Powers of attorney relating to medical decisions are subject to some oversight by doctors and other healthcare professionals, but there is no equivalent scrutiny of power of attorney in financial matters. As a safeguard, the report proposes mandatory registration of enduring powers of attorney, and greater investigative powers for the Public Advocate.

Attorney-General Robert Clark has indicated that the Baillieu government supports the shift in attitudes to guardianship reflected in the commission's report. To protect the vulnerable, the government should implement the report's key recommendations as quickly as possible.