The Guardianship Board of South Australia’s experience in realising the positive outcomes mediation can deliver Jeremy Moore President

Vulnerable

person with

impaired

decision-making

capacity

Application to

GSB for

Guardian &/or

Administrator

Application

triaged by

President/

Deputy

President

Registrar

starts

preliminary

mediation

work

GSB

Mediation

held

Public

Session

Private

Sessions

Family members in

conflict. Family

members/social

workers lodge

application with GSB

seeking

appointment of

Guardian &/or

Administrator.

Application received

by GSB. Triaged by

Board Officer with

President.

Identifies family

conflict. Refers

matter to Registrar

to pursue mediation

Registrar contacts all

interested parties: - family

members and neutral

parties (e.g. service

providers, Social Workers,

Directors of Nursing,

Domiciliary Care

Coordinators).

Registrar commences

Preliminary Mediation

work. Explores interests.

Informs parties of possible

outcomes.

Lists matter for GSB

mediation in 14 days.

Allows 2.5 hours. Also lists

matter for full board

hearing afterwards (for

hearing if agreement not

reached or if terms of

agreement need to be

embodied in formal orders

by the Board.

Requests all parties

provide short statements

setting out their issues.

President and Deputy

President co-mediate.

Parties invited into

public session.

Mediators explain

process.

No discussion of issues

in public session.

Mediators choose

parties to take part in

first private session.

Full Board

embodies

agreement

Mediation agreement

formalised in orders by

Full Board (if required)

1st private session

(Party 1)

(1) Short presentation

about background

statement.

(2) Issues explored. (3)

Mediators explore &

generate options.

2nd private session

(Party 2)

(1) – (3) above.

Co-Mediator drafts

agreement. Parties

sign and are give

copies of the

signed agreement.

Parties can contact

the Registrar who will

help ensure the little

hiccups do not lead to

the agreement going

off the rails.

After sales

service

3rd and 4th private

sessions. Options fine-

tuned.

For a person with a mental incapacity whose family members are in conflict

What is the make-up of the Guardianship Board?

Guardianship Board members have specific knowledge, qualifications or experience in areas such as: Law, Medicine, Psychiatry, Psychology, Nursing, Social Work and Community Work .

There is a full-time President, and part-time Deputy Presidents who are all experienced lawyers.

The Guardianship Board makes decisions pursuant to the Guardianship and Administration Act 1993

The Board receives Applications for Guardianship Orders (GO) and Administration Orders (AO).

Guardianship= Personal decisions; e.g accommodation, lifestyle, health.

Administration= Legal, business, financial decisions.

Person must have a mental incapacity. Informal arrangements insufficient?

Guardianship & Administration

What is mental incapacity? Defined in the Guardianship and Administration Act as:

the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs as a result of:

(a) any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or

(b) any physical illness of condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever.

The causes of mental incapacity can include, amongst other things, dementia, intellectual disability, mental illness, coma etc.

To satisfy the definition of mental capacity, the condition must affect the person’s ability to make decisions. For example, the person:

May lack a full understanding of their own actions or actions of others;

May not fully appreciate the consequences of their actions;

May take unreasonable risks affecting their health and welfare.

What is mental incapacity?

A person recovering from a brain injury or stroke may go through a brief period of

fluctuating or ‘borderline’ capacity before regaining capacity, if capacity is ever regained.

The brain function of a person with dementia will decline over time. There may be a

brief period of fluctuating or ‘borderline’ capacity.

Mental incapacity A person recovering from a brain injury or stroke may go through a brief period of fluctuating or ‘borderline’ capacity before regaining capacity, if capacity is ever regained.

The brain function of a person with dementia will decline over time. There may be a brief period of fluctuating or ‘borderline’ capacity.

A person with mental illness may have long periods of capacity and shorter periods of obvious incapacity.

(a)consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and

(b) the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and

(c) consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and

(d) the decision or order made must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with his or her proper care and protection.

[District Court case of Bronte Murchison; Appeal of Guardianship Board decision District Court No 273/2005]

Section 5 Principles

The Guardianship Board, guardians & administrators are bound by section 5 principles. The principles apply when making decisions about and for the vulnerable person.

“Past wishes” of the vulnerable person can be interpreted in a way which will indicate the core beliefs and values of that person.

“Substituted Judgement Model” - seeks to approximate what the person would decide at the time when a decision is needed, if the person’s capacity had not been impaired and if the person had access to current information and advice.

Recognizes that people often change their minds when they have accurate information about outcomes. This approach more closely approximates the concept of “authentic” substitute decision, or “walking in the shoes of another”.

‘Past’ wishes paramount

Sometimes people with a mental incapacity change their mind about important things in their life. For example: Who it is they want to be in charge of their affairs – personal and financial; Who should be allowed into their life; (e.g to visit &/or take on outings); Who is to be kept informed of significant health events; Who is to be excluded from their life.

Changing your mind

People can change their allegiances because of: 1.Family Conflict; 2.New people entering into the person’s life; 3.Neurological degeneration; 4.Depression and other Mental Health issues. 5.Elder abuse/undue influence (Supreme Court case of Western v Male [2011] SASC 75) “RED FLAGS” - “monopolising the attention of the person, attempting to influence documents, attempting to make appointments for the person, attempting to go along to all the appointments and not to let that happen independently,… a discouragement of… closeness with other relatives or friends”

Changing your mind

What can you do about it?

Application to Guardianship Board

Suitability for Mediation

Attempt to reach agreement by the parties

Aim to resolve matter on the day.

A workable solution and permission to move on from the conflict.

“After-sales service” by the Guardianship Board

Family conflict & Elder abuse

Registrar, Board, President or Deputy President may refer the matter for mediation Board may endeavour to achieve a negotiated settlement of any proceedings or resolution of issues in any proceedings Where a matter is settled under this section, the Board may embody the terms of the settlement in an order.

15a Mediation

Mrs Smith (1)

Mrs Smith had a husband who died about five years before. She lived in the city and moved up to his shack on the east coast of the State. At the time of Guardianship Board involvement she was in his 70’s and had moderately severe dementia. She was unable to look after himself. She had been cared by one of her three children, Sally. Sally was a teacher and lived on another part of the East Coast. She had two other daughters, one living in Adelaide who was the eldest of the children, and she had a third child who lived interstate. Sally had her mother living with her and her children. SHe went for a walk every day and he had a dog that was very important to her.

Mrs Smith (2)

There was conflict between the three daughters including an upset because of Sally’s decision to admit her Mum to hospital. One of the daughters wanted Mrs Smith to live in Adelaide and the other one supported that. The reality was that Sally was someone who displayed great determination to provide ongoing support for Mrs Smith and it made sense that she stay on the East Coast where she would get into a country nursing home and continue to have a relationship with Sally and her children, that they would see her most days, and that she would be able to spend time with her dog every day.

Mrs Smith (3)

The social worker from the East Coast hospital involved in Mrs Smith’s admission, had been well prepared by the Registrar of the Guardianship Board and took part in the mediation process, including in private sessions with family. There was considerable emotion involved. Mrs Smith’s children ultimately reached agreement that all three should be guardians and make decisions jointly for their mother. They also agreed that if there were difficulties or problems with a certain decision that they could not resolve themselves or with the assistance of the hospital social worker, then they would approach the Guardianship Board for directions and advice..

Mrs Smith (4)

The money side of things was relatively straightforward. It was all agreed that the interstate daughter, who came from a finance background, should be the administrator to manage Mrs Smith’s finances, and to keep her sisters informed via regular financial reports. Other matters were also agreed to and included in a written agreement, including that the following day they would visit the proposed nursing home; and an opportunity for Mrs Smith to have respite care in Adelaide if that could be arranged and it was suitable. Mrs Smith is just one story of Guardianship Board mediation.

Mrs Smith (5)

There are many others; - equally as personal and challenging. There’s the mediation where family agreed Mr Smith’s son Robbie should pay back $2000 he shouldn’t have used; Mr Smith wouldn’t want his son prosecuted for things he did when he was going though a really difficult patch. There’s the mediation where family effectively agreed on a calendar for scheduled visits to Mum for the next 12 months. And then there’s the mediation that ……. It’s the seemingly small things but which upon which conflict can fester and become increasingly toxic.

Example 1

Example 2

Example 3

moore.jeremy@agd.sa.gov.au

Image credit: Sam Noonan

Thank you