Public Guardian

ADVOCACY REPORT

2012

Cover artwork courtesy of Studio ARTES

Artwork: ‘Mathew’ by Lynda Strong

The Hon. Greg Smith

Attorney General

Parliament House

SYDNEY NSW 2000

Dear Attorney

I am pleased to present the NSW Public Guardian’s Advocacy Report for the year 2011-2012.

This report is made under section 80 of the Guardianship Act 1987.

The report provides information about the Public Guardian’s key advocacy activities. The Public Guardian reports on other operational functions and financial activities through NSW Trustee and Guardian’s Annual Report 2011-2012.

Yours sincerely

Graeme Smith

NSW Public Guardian

ISBN 978-1-922121-02-8 Print

ISBN 978-1-922121-03-5 Online

Disclaimer

This document has been prepared by the Department of Attorney General & Justice for general information purposes and while every care has been taken in relation to its accuracy, no warranty is given or implied. Further, recipients should obtain their own independent advice before making any decisions that rely on this information. (July 2012)

You may generally copy, distribute, display, download and otherwise freely deal with this work for any purpose, provided that you include the copyright notice "© State of New South Wales through the Department of Attorney General & Justice 2012 " on all uses. However, you must obtain permission from the Department of Attorney General & Justice if you wish to

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For alternative formats (audio tape, electronic or Braille versions) of this information contact the Public Guardian by phone: (02) 8688 6070 (voice), 1800 882 889 (TTY for people who are deaf or have a speech impairment), fax: (02) 8688 9797 or email

Summary by the Public Guardian

AIM OF THIS REPORT

This report highlights some of the individual and systemic advocacy activities undertaken by the NSW Public Guardian. The Public Guardian has a statutory duty to educate the community about guardianship, the Guardianship Act and the system of guardianship in NSW.

Our work is about vulnerable people and this report provides some insight into their individual stories. The stories tell of the real life issues people with disability face and the scope of our advocacy to address their individual circumstances.

HIGHLIGHTS OF YEAR PAST

Our involvement in the Grand Western Lodge closure was a major activity for the Public Guardian this year. The closure of this facility and the subsequent work of Ageing, Disability and Home Care (ADHC), in collaboration with others, including the Public Guardian, Guardianship Tribunal, NSW Trustee and Guardian (NSWTG) and People with Disability Australia, heralds a new future for the former residents.

We are often appointed at a stage when a person’s situation has either deteriorated or reached crisis point, requiring intensive intervention. The Public Guardian uses its experience as a guardian of individual clients to identify and raise issues at a systemic level. This year, working with key agencies, we have developed protocols that aim to close service gaps and prevent people reaching crisis level before intervention occurs. For example, new arrangements agreed between the Department of Family and Community Services (FACS), Ageing, Disability and Homecare (ADHC), the Public Guardian and the Guardianship Tribunal will make transitioning easier for young people leaving the children’s guardianship system and entering the adult guardianship system.

People with disability and complex care needs can often experience great delays in appropriate discharge from mental health units. Our work gives us a great opportunity to see the difficulties people face accessing community accommodation. By initiating an inquiry by the NSW Ombudsman we think we have helped to progress this issue and look forward to the recommendations arising from their report later in the year.

The launch of the Planning Ahead Tools website at NSW Parliament House was a significant event in February. We worked with NSW Trustee and Guardian (NSWTG) and the Office of Ageing, and on behalf of the Planning for Later Life Forum to develop a highly interactive format. The website gathers information about wills, powers of attorney, enduring guardianship and advance care planning. www.planningaheadtools.com.au

YEAR AHEAD

A priority of the Public Guardian will continue to be our partnerships with other departments and non-government agencies. We believe that the promotion and protection of the rights and interests of people with impaired decision-making can only be achieved by working together. We are excited by the opportunity to join with ADHC and NSWTG in the development of a Supported Decision-Making Pilot. The future of supporting people with decision-making impairments must include models of decision-making support that see formal guardianship as truly a last resort. This initiative is an important part of the new approach to placing the person at the centre of planning and decision-making about their services and supports.

In NSW, unlike some of the other jurisdictions in Australia and overseas, the Public Guardian can only assist someone if formally appointed as their legal guardian. If the Public Guardian had a public advocacy role, we would be able to investigate matters earlier. Through advocacy, we would be able to change a person’s circumstances and prevent further harm, often without the need to be appointed as a guardian. In the coming year, we want to explore this possibility through a process of consultation, in line with the recommendations of the NSW Parliament in 2010.

We think the events surrounding the Grand Western Lodge closure are a good example of how vulnerable people with disability in NSW could benefit from the Public Guardian having an investigative role similar to that in other jurisdictions. With the power to investigate allegations of abuse, neglect and exploitation we would be able to make applications to the Guardianship Tribunal to appoint a guardian or financial manager. It would be possible to intervene earlier. For the people of the Grand Western Lodge, it could have meant moving to more appropriate accommodation much sooner.

I would like to take this opportunity to thank the dedicated staff of the Public Guardian’s office. The Public Guardian is appointed in complex situations where the issues are contentious and significant advocacy is needed to get vital services for the person under guardianship. It is not an easy job and I’m very grateful to the staff for their service and commitment.

OUR ORGANISATION

1923 TOTAL CLIENTS

as at 30 June 2012

WHO WE ARE

The Public Guardian in NSW

The Public Guardian promotes the rights and protects the interests of people with disability through guardianship, advocacy and education. Our vision is a supportive community in which all people are included as valued members and their human rights promoted.

The Public Guardian is a legally appointed substitute decision maker for people with impaired decision-making. Under the Guardianship Act 1987 the Public Guardian can be appointed by the Guardianship Tribunal or the Supreme Court to make health and lifestyle decisions (not financial decisions).

Our actions and decisions as guardians are legally the same as if the person under guardianship had made them themselves.

We work with people with disability such as dementia, intellectual disability, brain injury or mental illness. We provide community education about guardianship, enduring guardianship, planning ahead and other aspects of our work. We are only appointed when there is no other person able to take on the role. We support people appointed as guardians for their family or friends, including enduring guardians, through our Private Guardian Support Unit.

We advocate at individual and systemic levels on behalf of people with impaired decision-making capacity.

OUR COMMITMENT TO CHANGE

The Public Guardian has had an important role in effecting positive change in the lives of people under guardianship through his systemic advocacy work.

Standout quote* According to the Productivity Commission Inquiry Report into Disability Care and Support (July 2011) people with disabilities are among the most disadvantaged groups in Australian society, in measures of social isolation, financial status and personal wellbeing[1]

Above artwork: ‘Untitled 2’ by Sophie Carter

OUR VALUES

Respect

Guidance

Support

Community

Disability Type Graph*

Autism 39

Brain Injury 223

Dementia 356

Eating Disorder 6

HIV Aids related 10

Intellectual Disability 678

Neurological 83

Other 142[2]

Psychiatric Disorder 376

CASE STUDY 01

Advocating for community based accommodation

Roberto, aged 90 has dementia and multiple health issues. Four years ago he appointed his children Ben and Melissa to be his joint enduring guardians.

Ben later made an application to the Guardianship Tribunal to have these appointments reviewed because he and Melissa disagreed about Roberto’s needs.

The Guardianship Tribunal held a hearing. Roberto was in hospital and his treating team recommended he be placed in an aged care facility. The Guardianship Tribunal appointed the Public Guardian to make decisions about his accommodation, services, medical and dental consent and health care.

Melissa wanted to care for Roberto at home. We advocated for the Aged Care Assessment Team to assess this option and we decided Roberto would be discharged home with services and Melissa’s care, for a three month trial.

During the trial we visited Roberto and Melissa. Roberto was happy that he could sit in his garden and have a cigarette when he wanted to. He had fallen and had ongoing health problems but the situation was manageable and what Roberto wanted. After assessments and information from family and service providers, we consented to Roberto remaining in his home with Melissa’s care.

1,115 accommodation decisions made in 2011-2012

All names and details have been adapted for privacy in this report.

GENERAL PRINCIPLES

The principles of the Guardianship Act 1987 [3]

The welfare and interests of the person should be given paramount consideration.

The freedom of decision and freedom of action of the person should be restricted as little as possible.

The person should be encouraged as far as possible to live a normal life in the community.

The views of the person should be taken into consideration.

The importance of preserving family relationships and cultural and linguistic environments of the person should be recognised.

The person should be encouraged as far as possible to be self reliant in matters relating to personal, domestic and financial affairs.

The person should be protected from neglect, abuse and exploitation.

The community should be encouraged to promote these principles.

OUR DECISION-MAKING AND ADVOCACY

Most people with disability can make their own decisions. Guardianship is a last resort when a decision needs to be made and the person lacks capacity to make the decision. Through our community education, we encourage those working with and caring for people under guardianship to help the person be self reliant in matters relating to personal, domestic and financial affairs.

The aims of guardianship are to make the decision the person would have made themselves or where that’s not possible, to make decisions in their best interests and to advocate for better life outcomes. People with disability are among the most disadvantaged groups in Australian society, in measures of social isolation, financial status and personal wellbeing.[4]

We represent some of the most vulnerable people in NSW, which provides us with insight into everyday issues and problems for people with a broad range of disabilities. Part of our role is to use this insight to draw attention to gaps and inequity. Individual and systemic advocacy is integral to good decision-making and we believe guardianship can promote the rights of vulnerable people.

In this report we highlight some significant events in our systemic advocacy in 2011-2012.

Organisational chart *

Each team is managed by a Regional Manager and staffed with

Principal Guardians, Senior Guardians, Guardians, Administrative support

Information flow from individual to systemic advocacy

Guardians sometimes identify issues that cannot be solved with individual advocacy. They report issues to supervisors so that senior managers can raise them at the systemic level for action. Staff are advised of outcomes and any changes to guardianship work.

OUR LEADERSHIP TEAM

“We should strive to promote the rights and protect the interests of the state’s most vulnerable citizens”.

Photo *

Left to right: Graeme Smith, Public Guardian, Patricia Davidson Assistant Director - Operations,

Frances Rush Assistant Director - Policy and Advocacy.

2231 recorded client visits in 2011-2012
INFORMATION TEAM

SUPPORTING OUR COMMUNITY

PRIVATE GUARDIAN SUPPORT UNIT (PGSU)

The PGSU supports private and enduring guardians in NSW. These guardians are appointed by the Guardianship Tribunal or through the system of enduring guardianship.

PGSU responds to requests for information and assistance but does not supervise guardians. We publish Now You’re the Guardian, a guide to guardianship, and Onguard, a regular newsletter.

Guardians most commonly contact us about their rights and responsibilities. We receive approximately 250 calls a year from guardians; this has been consistent over the last three years. We think this is a relatively small number, representing 13.8% of known guardians. Guardians tend to contact us when they are at a critical stage in their decision making and advocacy. Guardians have told us our publications and the service we provide are extremely helpful, but that they value their independence.

We talk to guardians about how to understand the NSW Guardianship Act, negotiate services and advocate for the person’s needs.

Many people who call us are confused about the difference between the Public Guardian, Guardianship Tribunal and NSW Trustee and Guardian. We explain the difference in our respective roles and decision-making authority. The Guardianship Tribunal decides if an order is needed and who the guardian or financial manager should be. The Public Guardian is responsible for health and lifestyle decisions and NSWTG makes financial decisions.