Guardianship law changes

Simple overview of the Guardianship and Administration Amendment Bill, and questions for people who have been on Guardianship or Administration Orders, to help make the law better

The Government wants to change Tasmania’s guardianship laws to make the system work better. We want people to tell us their experiences under the current law. We also want to know what people think of the things we are looking at changing.

We are changing the law in several parts. In the first part we did last year, we made a law about “Advance Care Directives”. That means a person who is able to make decisions can write down how they would like to receive health care in future, if they ever lose their ability to make decisions for themselves.

In this second part, we want to change the law to make sure that people living with a disability have their human rights protected. This includes making new laws that the Tribunal and guardians and administrators have to follow. This includes the Public Guardian and the Public Trustee.

We only want to give someone else the right to make decisions (a guardian or administrator) when a person cannot understand or remember the information they need to think about when deciding something for themselves.

Some of the important things we are looking at are:

  • Ensuring that guardianship laws are only used when they are really needed, as a last resort.
  • Making guardians and administrators respect your will and preferences, rather than decide things based on your ‘best interests’.
  • Requiring that you are provided with greater support to help you make your own decisions when it is possible.
  • Being clear about what information is required from doctors and others who may be deciding whether you have the ability to make decisions for yourself.
  • Increasing the involvement of families and supporters.
  • Giving you more say in decisions made about you.
  • Changing what are called ‘gag’ laws, which stop the media from naming someone who is speaking about their experience.
  • Making clear how you can complain if you don’t like what is happening to you.
  • Making it possible for medical research to occur if you have lost the ability to give “informed consent”.

In the future, we will be looking at other things like laws that allow you to appoint a supporter. We will also look at changes to the way in which consent can be given to medical and dental treatment. We will also look at ways to make things work better when appointing an “enduring guardian” or “enduring power of attorney”.

To help us understand how the guardianship system has affected you, we’ve put together some questions below. Your answers will help us understand your experience and make better laws.

You can also tell us about anything else you think we should know. We will keep your information private and only use it to help us improve the law.

Please send your answers and comments to Leica Wagner at haveyoursay@justice.tas.gov.au. Leica Wagner is the contact person at the Department of Justice who is working on the law reforms.

Questions

  1. Do you still have a guardian or administrator making decisions for you?
    1. If you do, is it a family member or carer or is it the Public Guardian or Public Trustee?
    2. If you no longer have a guardian or administrator, how long did you have one for?
    3. Thinking back to when your guardian or administrator was appointed, do you know who made the application to have one appointed?
      1. Did they tell you they were making the application?
      2. Were you helped to understand what having a guardian or administrator appointed meant for you?
      3. Did they talk to your family or carers?
      4. What would have made things better?
    4. Thinking back to the hearing where the guardian or administrator was appointed:
      1. Were you there?
      2. Did you have anyone to help you at the hearing?
      3. Were you helped to understand what was happening and what it meant to have a guardian or administrator appointed?
      4. Were you given any papers to help explain why the order was made?
      5. What would have made the process better for you?
    5. What is it like having a guardian or administrator making decisions for you?
      1. What sorts of decisions did they make?
      2. How often did they talk to you?
      3. Did they ask what you wanted?
      4. Did they talk to your family or other people that you trust?
      5. Did they provide support to help you make decisions yourself or improve your decision-making ability?
      6. What happened if you disagreed with them?
    6. How do you think the system could be better? Would it be better to:
      1. Have shorter periods for emergency orders? They are currently for 28 days and can be extended for another 28 days.
      2. For others to be unable to make decisions in emergencies that would have long-term consequences for you, like changing where you live?
      3. Only override your choices in emergencies where there is an urgent risk to your life?
      4. Make it easier to complain to someone when you disagree with what the guardian or administrator is doing?
      5. Have stronger punishment for guardians or administrators who do the wrong thing (such as penalties or paying you money)?
      6. Have more support for you so that you can be more independent and make your own decisions?
      7. Always tell you why decisions have been made about you?
      8. Make sure you have someone independent on your side, unless you don’t want support?
    7. There has been lots of talk in the media about ‘gag’ laws, which means laws that stop the media naming people who are on guardianship or administration orders. We want to know how you feel about talking to other people (like a newspaper) about your story:
      1. Do you think you should be able to share information with others?
      2. Do you think you should be able to give approval for the media to run stories about you?
      3. What wouldn’t you like others to know?
      4. Would you be happy to be identified in the media without your approval?
    8. We are thinking about ways in which people who lack decision-making ability may also be able to take advantage of new or alternative treatments when they are sick. This can mean participating in “medical research” or a “clinical trial”. These laws allow for medical research to happen without your agreement, but we want to make this happen safely. These laws won’t just apply to people under guardianship. They will also apply to people who go to hospital in an emergency or who have been injured and can’t make decisions for themselves. Medical research can help researchers find ways in which dementia and other illnesses can be treated better. But it might be frightening or upsetting to have medical research happen without your understanding. These laws could help try new forms of treatments when people are unconscious because of an accident or emergency and they need emergency care. We want to hear your thoughts on where the balance should be:
      1. Do you think doctors and medical researchers who are undertaking research should ever be able to make decisions about your involvement in medical research without your informed consent?
      2. Is it enough if doctors and medical researchers let you know when you are better or get the approval of a family member or your guardian?
      3. What should doctors or medical researchers take into account when deciding if you wish to be involved?
    9. We want to make it so you can only have a guardian or administrator if you cannot understand, remember or communicate information about a decision. We want to know if this is a good test. We want to hear your thoughts on who makes these decisions and what they need to know:
      1. How do you make important decisions?
      2. If you can make decisions with support, should others always respect those decisions?
      3. Should someone else be able to decide you cannot make decisions? What should they need to prove?
      4. Should you be supported to get a second opinion if you disagree?
    10. Is there anything else you wish to tell us about your experiences in the guardianship or administration system?