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The Adult Guardian: Capacity & Role

Presented by:

Dianne Pendergast (Adult Guardian)

June 2008

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We will talk about

1. Legislative framework

2. What is the Adult Guardian?

3. Primary functions – Guardianship, Investigations & Statutory Health Attorney

4. And . . . you

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Legislative framework

• Framework for decision-making by and for adults with impaired decision making capacity.

Powers of Attorney Act 1998 (Qld) Guardianship and Administration Act 2000 (Qld)

PAA 1998, GAA 2000

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What is the legislation about?

1. When is an adult unable to make their own decisions for a matter?

2. What decisions can be made for an adult?

3. Who can make substituted decisions for an adult?

4. How are substitute decisions for an adult made?

5. Agencies involved in the guardianship system?

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What is the Adult Guardian?

• Independent statutory officer

• Not under control or direction of the Minister (GAA 2000 s176)

• Appointment by the Governor in Council - Reports the Queensland Parliament

(GAA 2000 s199 – 207)

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Role• Protect the rights and interests of

adults with impaired capacity for a matter(GAA 2000 s174)

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How?• Protection from neglect, abuse or exploitation• Investigations – allegations of abuse, neglect and

exploitation• Mediation and conciliation.• Acting as attorney.• Acting as guardian.• Consenting to forensic examination (GAA s198).• Seeking help and making representations.• Education and advice.

GAA 2000 s174 & PAA 1998

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Guardianship - Capacity

1. If you are > 18, presumption of capacity to make your own decisions.

(GAA 2000 Sch 1 Part 1 General Principle 1)

2. Capacity is:Understanding the nature & effect of decisions about a matter;Freely and voluntarily making decisions about a matter; andCommunicating the decisions in some way

(GAA 2000 s3 sch 4)

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Capacity is . . .• Decision specific, domain specific, time specific

• Decided by the Guardianship and Administration Tribunal decides. If an adult lacks capacity the tribunal must decide for what matters they lack capacity, whether they need a decision-maker (guardian) and if so, who. The tribunal and the Adult Guardian are separate, unrelated legal entities.

• Decided on medical and other evidence.(GAA 2000 ss12, 31, 82, 146)

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Who may have impaired capacity?

• A person who has:

An intellectual disability A psychiatric disability An acquired brain injury A form of dementia A dual diagnosis An unconscious state or delirium

• Incapacity can be permanent or temporary

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When is the Adult Guardian appointed by GAAT?

Adult Guardian is the guardian of last resort and . . .

There is a need for a decision to be made that cannot be made on an informal basis.

The adult has been abused, neglected or exploited.

The adult is likely to do something that involves, or is likely to involve, unreasonable risk to their health, welfare or property.GAA 2000 s14,12

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When is the Adult Guardian appointed cont.?

Without the appointment, the adult’s needs will not be met, or their interests adequately protected.

There is serious conflict in the family about decisions to be made for the adult with impaired capacity.

Need for someone external to the family or supportive network to act as the adult’s guardian.

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What decisions can the Adult Guardian make?

The GAAT order will specify all or some of . . .• Accommodation• Service provision• Health care (including behaviour management/use of restrictive

practices)• Legal matters not involving property or finances• Education• Training• Contact• Day-to-day affairs• Licence• Other

GAA 2000 Schedule 2 Part 2

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The Adult Guardian must……• Comply with the General and Health Care Principles of

the Acts

• Make decisions that are least restrictive of the adult’s rights

• Make decisions that are consistent with the adult’s care and protection

• Endeavour to get all necessary information [GAA 2000 s34,44]

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Decision making cont….• Adult Guardian must take into account:

Adult’s views and wishes Views of adult’s support network Recommendations from health care providers Recommendations from service providers Views and advice of the administrator

• Decisions may be contrary to the adult’s expressed wishes

• Decisions may be contrary to the wishes of significant others

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General Principles of the Acts• Presumption of capacity• Same human rights• Individual value• Valued role as member of society• Participation in community life• Encouragement of self-reliance• Maximum participation, minimal limitations & substituted

judgment• Maintenance of existing supportive relationships• Maintenance of environment and values• Appropriate to circumstances• Confidentiality

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Effect of consent by substitute decision maker is . . .

• Same protection as if adult gave consent

GAA 2000 s33, Health ss.77 - 80

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The Adult Guardian is unable to……

• Make financial or property decisions.• Make decisions about special health care.

(tissue donation, sterilisation, termination of pregnancy, participation in special medical research/experimental health care, ECT or psychotherapy)

• Act as an adult’s carer, case manager or care coordinator.

• Act as a client support worker.• Take on duties normally carried out by family or service

providers.• Give legal advice.

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Investigations

Discretion to investigate allegations of neglect, exploitation, abuse or inappropriate or inadequate decision making arrangements for an adult with impaired decision making capacity.

(GAA 2000 S180 – 198)

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Broad investigative powers

• Right to information• Notice to produce records and information• Notice to attend• Summons to give evidence• Whistleblower protection• Freedom of information exempt• Penalties apply – vexatious complaints and obstructing investigations

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Possible investigations outcomes

• No investigation – insufficient grounds; adult has capacity

• Advice and directions regarding responsibilities• Monitoring and supervising• Referral to service support agencies or other

professional bodies• Suspension of attorney’s power• Application to GAAT for appointment of formal decision

maker/s• Request the return of money to the adult• Referral to the police/other agencies

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Adult Guardian’s protective powers

• Suspend attorney’s powers if suspicion on reasonable grounds attorney is not competent.

• Apply to courts for return of property wrongfully held.

• Apply for warrant to remove an adult at immediate risk of harm due to neglect, exploitation, or abuse.

GAA 2000 s195, s194, s197.

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Statutory Health Attorney• Generally - Health provider must obtain consent for treatment

• Except – first aid treatment (GAA Sch 2.5) – non-intrusive examination for diagnostic purposes (GAA Sch 2.5)– administration of a drug which is self administered, not require script and for

recommended dosage & purpose (GAA 2000 Sch 2.5)– Urgent health care (GAA s63)– Life sustaining measure in acute emergency (GAA s63A)– Minor & uncontroversial healthcare (GAA s64)

• Patients need information on the risks, side effects, benefits and alternatives to treatment

• Adults with capacity have the right to refuse health careAlso see GAA 2000 s63, s64.

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Health care• “Care or treatment of, or a service or a procedure for, the

adult –(a)to diagnose, maintain, or treat the adult’s physical or mental

condition; and(b)carried out by, or under the direction or supervision of a health

provider

• Includes withholding or withdrawal of life sustaining measures if commencement or continuation is not inconsistent with good

medical practiceGAA Schedule 2 .5

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If the adult lacks capacity, who can give consent?

The first of the following may give consent:The adult’s guardianThe adult’s attorney for personal matters

under an Enduring Power of AttorneyThe adult’s attorney for personal matters

under an Advance Health DirectiveThe adult’s Statutory Health Attorney

GAA s66

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SHA - Definition• A person declared by legislation

to be a person with authority to make decisions about health matters for an adult who does not have capacity to make their own decisions.

– PAA 1998 s62

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Who can be a Statutory Health Attorney?

• A person > 18 with a relationship with the adult with impaired capacity

• Order of priority Person’s spouse/partner (close and abiding

relationship) Person’s non-paid carer (Carer Allowance/Payment

OK) Person’s close friend or family Adult Guardian

PAA 1998 s63

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How are health care decisions made?

Power for a health matter should be exercised : In the way ‘least restrictive’ of the adult’s rights. Only if the exercise of power is necessary and appropriate to

‘maintain or promote’ the adult’s ‘health and wellbeing’. Is, in all circumstances, in the adult’s best interests. Where choice between 2 or more options, the ‘less intrusive way’

should be adopted. Seek and take into account the adult’s views and wishes. Take information given by the adult’s health provider into account.

GAA 2000 s61, Health Care Principle Part 2.12

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In case of dispute . . .

• Adult Guardian can mediate.

• Adult Guardian can make decision in lieu of SHA.

GAA s42 & 43

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What about you?

• Advance Health DirectiveA formal way of giving instructions for

future health care

• Enduring Power of AttorneyGives another person/s the power to make

personal and/or financial decisions

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Law Reform Commission

1. Conducting a review of GAA 2000 & PAA 1998

2. Recommendations concerning confidentiality within guardianship due to be tabled in Parliament.

3. Second stage of the review commences end 2008.

4. LawReform.Commission@justice.qld.gov.au or website www.qlrc.qld.gov.au

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Thank you

Questions ?

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For information, general advice, forms, to make a referral or to talk to a guardian or investigator• Address: 363 George Street Brisbane• Postal: PO Box 13554 Brisbane

George Street 4003• Phone: 07 3234 0870• Toll free: 1300 653 187• Email:

adult.guardian@justice.qld.gov.au• Website:

www.justice.qld.gov.au/guardian/ag