GUARDIANSHIP ORDERS FOR YOUNG ADULTS LEAVING CAREKathy King, Assistant Director of Advocacy and Policy, NSW Public Guardian

Alex Sprouster, Legal Officer, Guardianship Division of the NSW Civil and Administrative Tribunal

Contents:

1. Details of Protocol between FACS and the Public Guardian

2. Guardianship Division of NCAT – processes

3. Public Guardian – processes

4. Case studies

Protocol between FACS (Community Services and ADHC) and the Public Guardian• Children’s guardianship jurisdiction – care and protection.• Adult’s guardianship jurisdiction – autonomy,

empowerment, best interests.• A parental responsibility order of the Children’s Court

overrides a guardianship order by the Tribunal.• Protocol allows for a guardianship order to coexist with

the parental responsibility order.• Guardianship order is limited to advocacy function only • Aims to improve outcomes for young people who are

transitioning.

Protocol Process• Applications for guardianship to be made to the

Guardianship Division of NCAT.• Seeking appointment of Public Guardian with a function of

advocacy only. • Community Services to make the application.• Protocol, Children’s Court Order, Leaving Care Plan to be

included in application as well as medical reports. • As early as possible after the young person turns 16

(cannot be made before 16).• The Public Guardian to be provided with a “seat at the

table” in the development of the young person’s transition plan

Protocol eligibility criteria

• Young person under the Parental Responsibility of the Minister for Family and Community Services.

• Aged 16 years• Placed in ‘Out of Home Care’.• Has a disability that prevents him/her from making

decisions in one or more activities of daily living (e.g. accommodation, services)

• No family members to assist him/her to make decisions informally.

• He/she will be transitioning to receive support from Ageing, Disability and Home Care after they turn 18.

Development of the protocol• 2004 NSW Ombudsman’s Report – reviewed 27 young

people transitioning from CS to ADHC.• Young people falling through the cracks, losing services,

becoming homeless, becoming involved in the justice system etc.

• Report highlighted need for collaborative and proactive approach between agencies and improved case management.

• In 2010 Ombudsman again raised concerns.• Public Guardian instigated working group to establish

protocol in 2011 – recognised importance of external agency to advocate for young person.

• Protocol commenced in June 2011.

NGO involvement• Guardianship Division can accept applications from

anyone with a ‘genuine concern’ for the young person.• Where young person is under parental responsibility order

– CS have advised that only CS can make applications to NCAT.

• NGOs should refer any young person they consider might be appropriate for the protocol to CS for the application to be made.

• If the Tribunal receives an application from an NGO it will be registered and prepared for hearing – CS may apply to become substitute applicant instead of NGO.

The Guardianship Division of NCAT• Formerly the Guardianship Tribunal• NCAT established on 1 January 2014• Jurisdiction under the Guardianship Act 1987• Tribunal can appoint guardians for persons over 16 years.• Guardians make personal/lifestyle decisions.• No authority in relation to finances – financial

management order is a separate application.

Guardianship orders• Orders are a last resort.• Only where informal arrangements are not possible.• Private person appointed as first preference.• Public Guardian if no suitable private person.• Orders are limited (maximum of 12 months).• Orders are reviewed before the end of their term.• Tribunal tailors the order so that the guardian only has

authority in certain areas (‘functions’).

Guardianship orders• The Tribunal must be satisfied:

• The person has a disability and, by virtue of that fact, is restricted in one or more major life activities to the extent that he or she requires supervision

• Because of the disability the person is incapable of managing his or her person and

• There is a need for a guardian.

• Tribunal must take into account the views of the person, their spouse and their carer.

• Tribunal must consider whether services can be provided informally.

Guardianship orders - functions• Guardianship orders contain ‘functions’.• Functions are decision making areas the guardian has

authority over.• Examples of functions:

• Accommodation• Services• Health Care• Medical and Dental Consent• Advocacy• Restrictive practices• Access

Guardianship Division procedure• Applications are triaged in terms of risk to the person.• Assigned to a Tribunal Officer for preparation.• Tribunal Officer:

• Arranges for a hearing venue close to the person or videoconference from Balmain.

• Contacts applicant, person the subject of the application and other parties to obtain views.

• Contacts Public Guardian to arrange participation in the hearing – in practice PG may not always be able to participate.

• Assist the parties to understand the process.• Distributes documents to the parties prior to the hearing.

Separate representatives• Separate representative may be appointed to:

• Make submissions about best interests of the person – in a legal context

• Gather the person’s views in a private and informal way to convey to the Tribunal at the hearing

• Present any other evidence• Make submissions on whether the Tribunal should make an order.• Act in accordance with the section 4 principles• Not a legal representative – not acting on the instructions of the

person.

Guardianship Division hearings• Hearings must be conducted with as little formality as the

circumstances permit.• Person the subject of the application is involved in a face-

to-face hearing (where possible).• Tribunal is not bound by the rules of evidence.• Tribunal is made up of a 3 member panel: legal member,

professional member and community member.• Tribunal must provide written reasons for decision.

Section 4 principles Must be observed by the Guardianship Division and the Public Guardian:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation

The Public Guardian• Also established under the Guardianship Act.• The Public Guardian is a Statutory Official.• Promotes the rights of people with disability through

guardianship, advocacy and education. • When appointed, PG’s decisions as guardian are legally

the same as if the person had made them themselves.• Provides support to private guardians.• Advocates at both individual and systemic levels on behalf

of people with impaired decision making capacity.

Public Guardian’s decision making• Makes decisions in accordance with:

• The guardianship order – conditions and functions.• Principles in Section 4 of the Guardianship Act.• Guidance from the Tribunal’s reasons for decision.• Seek views of the young person and key people.• Assessments and other information.• Advocacy.• Position statements and standards.• Delegations.

Advocacy function under the protocol• Parental responsibility means the young person already

has a substitute decision maker.• PG cannot interrupt the Minister’s power.• Advocacy function:

• Right to attend transition planning meetings between Community Services and Ageing, Disability and Home Care.

• Right to call meetings.• Represent young person’s best interests.• Investigate/suggest alternatives in areas of need.• Mediation between parties.• Consultation and promoting collaboration.

Promoting better outcomes in the transition process• Protocol allows for guardianship orders that assist to

prevent young people with a decision making incapacity from falling through the cracks of the system at a critical point in their lives.

• Protocol provides support and consistency for young person during transition.

• Ensures the views of the young person are heard and considered.

• Allows for alternative ideas for accommodation and support to be considered.

• Focuses on the best interests of the young person. • Builds the decision making capacity of the young person.

Promoting better outcomes in the transition process• Ensure the transition from children’s to adult guardianship is as

effective as possible.• Public Guardian has an awareness of the need to balance

between protection and empowerment.• UN Convention on the Rights of Persons with Disabilities –

supporting the young person to develop the capacity to make decisions for him/her-self (where appropriate).

• Least restrictive principle.• Guardianship order is usually reviewed at the end of its term• Public Guardian may apply for additional or fewer functions

where necessary. • Public Guardian may recommend the order lapse as early as

practicable to allow young person to be self-reliant and live a normal life in the community with informal supports.

Case study: Amy• Amy is 17, has intellectual disability and conduct disorder.• Lives in supported care and has contact with foster family

and supervised visits with natural family.• Will be transitioning to Ageing, Disability and Home Care

with a non-government service package.• Guardian appointed with advocacy and:

• Visited Amy and her foster family to explain his role and obtain their views.

• Attended the transition planning meetings.• Found out that Amy can express her views but is vulnerable to

influence of others.• Assisted with deciding the best accommodation option and finding

a transition to work program that matched her interests.

Case study: Chris• Application made when Chris was 17 years and 10 months.• Chris was 18 by the time of the Tribunal hearing.• Intellectual disability with behavioural issues.• Residing with foster carers – carers did not wish to continue in

that role.• Transition plan – move to independent accommodation.• Tribunal appointed PG for 12 months:

• Chris decided to live with his natural family after re-establishing contact.• Now lived 80kms away from approved funded services.• Relationship between natural parents then broke down.• PG playing ‘catch up’ for the next 12 months.

• It is important that young persons who might be transitioning to ADHC are identified as early as 15 years so that an application can be made when they turn 16.