When is a Guardian Needed?

A guardian is needed where an adult with a disability cannot manage on their own with decision making. This may come about as a result of an accident, or an anticipated disability (such as with enduring guardianship). A guardian may also be needed because a person has reached 18 years of age, and requires a guardian to help manage in adult life.

What is a person responsible? A person responsible is a spouse, carer or close friend, or a guardian who is responsible for decisions in relation to proposed medical and dental treatment. They must be over the age of 18 (s4, Guardianship and Administration Act). The Guardianship and Administration Act gives a person responsible the authority to provide substitute consent for the person with a disability. A person responsible can be another way of referring to a guardian but in the particular context of medical and dental treatment. Questions a person responsible should ask themselves before making a decision include:

• what is the proposed treatment?
• why is the treatment proposed?
• if possible, what are the patient’s wishes?
• what is the likely consequence of not undertaking the treatment?
• what, if any, are the alternatives?
• what are the risks?
• what are the benefits of the proposed treatment?
• what are the long or short-term side effects of the treatment?

The consent of a person responsible will not be necessary where the medical or dental treatment is an emergency, or where the treatment is minor, such as a general check up for a cold. The person responsible cannot consent to special treatments. Only the Guardianship Stream of the Tasmanian Civil and Administrative Tribunal has the power to authorise special treatments.

Medical and Dental Treatment

Medical and dental treatment of a person with a disability sometimes call for the consent of a person other than the person with a disability. This person is ‘the person responsible’. A person responsible may be the Tribunal, a carer, a friend, a parent, a guardian, an enduring guardian, or the public guardian. The consent they provide is called ‘substitute consent’.

Consent is necessary because any patient who is going to undergo treatment must be made aware of, and be able to understand the nature of the treatment, the risks associated, and the effects of the treatment. The patient must also be made aware of the impact of not undertaking treatment, and of alternative treatments, and the nature, effects and risk of the alternative. Where a person cannot understand these matters, then it is a question of gaining ‘substitute consent’.

The Tribunal is the only person responsible that can consent to special treatments. These are:

• those likely to lead to infertility
• termination of pregnancy
• removal of tissue for transplant
• psychosurgery (such as a lobotomy)
• any treatment involving an aversive stimulus (such as electric shock therapy)

While some medical or dental treatments won’t require consent, such as emergency treatments or a GP appointment to make a visual examination of the patient’s mouth, eyes, ears or throat, or the administration of a non-prescription medication in recommended doses, such as paracetamol, there are some treatments that do require consent. Firstly, the treatment must be lawful. Consent can then be given where the patient does not have the capacity to consent, and where the treatment is in the patient’s best interests.

A person responsible can give substitute consent even where the patient refuses the proposed treatment. However, a person responsible can delegate the giving of substitute consent to the Tribunal. The Tribunal will give consent where a patient is objecting to treatment that is necessary to promote their health and well-being but there is no person responsible available or willing to make that decision for the patient. The Tribunal can also intervene where there is a dispute or uncertainty between the practitioner, person responsible and/or the patient about whether or not to proceed with the treatment. The Tribunal may also intervene where the proposed treatment involves a significant risk

Property Management

There are two basic types of property management relevant to intellectually disabled adults who are unable to administer their financial affairs:

• where a person does not have a great deal of property, and it can be informally managed by a relation, friend or care giver organisation;
• where a person has a lot of property, or where informal management is impractical or being abused or where there is a dispute within a family about financial management or between family and service providers about what is in the person’s best interests, in which cases it may be necessary to appoint an administrator pursuant to the provisions of the Guardianship and Administration Act 1995 (Tas).

There are also other possible forms of management which deal with only part of a person’s property. Included amongst these is the ‘warrantee’ system for looking after a person’s pension.

Why is property management needed?

Property management is needed so that the best interests of a person with a disability can be managed by someone who is able to make the decisions that a person with a disability is not able to make or understand.

Informal Property Management

Often relatives, friends and care giving organisations look after a person’s money on an informal basis without being officially appointed property managers. The most common method for this is for the informal manager(s) to be able to sign in respect of the person with a disability’s bank account.

In these situations, two basic rules apply. Firstly, the person looking after the money should keep it somewhere safe, but at the same time ensure that a reasonable interest rate is obtained. Normally a bank or building society will be the best place to keep the money. The money should be kept in a separate account in the name of the person with a disability. It should not be pooled in an account with the money of the other residents of the place where the person with a disability lives. Normally the account should have two signatories, both of whose signatures are required for any withdrawal.

Secondly, the money and the income earned on the account where it is placed must only be spent on the person with a disability. It must not be spent on other people. If a person with a disability loses money through a breach of the above rules, the person (or someone on their behalf) would very often be able to sue for the lost money.

If the person with a disability has the ability to look after their own money, they of course are entitled to do so. The person with a disability then may demand that the person looking after their money hand it over.
Where a person with a disability does not have the ability to look after their own money, and one of the above informal arrangements is not suitable, a friend of the person with a disability can then look into having themself or the Public Trustee appointed to manage the person with a disability’s property.

Formal Property Management

Under the Guardianship and Administration Act, the Guardianship Stream of the Tribunal has the power to appoint an administrator to make legal and financial decisions for an adult with a disability. Existing committee orders made by the Supreme Court under the Mental Health Act prior to 1995 take effect as administration orders under the Guardianship and Administration Act and are subject to review by the Tribunal.

The Warrantee System

Centrelink has the power to pay pensions and benefits to someone other than the pensioner. The money is then held by that person on behalf of the pensioner. This system is called the ‘warrantee system’ and is often used in relation to intellectually person with a disability. The ‘warrantee’ may be an organisation or a relative or friend.

Similar rules apply to the warrantee as apply to informal property management.