The paper reflects the Commission's terms of reference - the desirability of changes to the Guardianship Act 1987 (NSW), with regard to:
1. The relationship between the Guardianship Act 1987 (NSW) and - The NSW Trustee and Guardian Act 2009 (NSW) - The Powers of Attorney Act 2003 (NSW) - The Mental Health Act 2007 (NSW) - other relevant legislation.
2. Recent relevant developments in law, policy and practice by the Commonwealth, in other States and Territories of Australia and overseas.
3. The report of the 2014 ALRC Equality, Capacity and Disability in Commonwealth Laws.
4. The UN Convention on the Rights of Persons with Disabilities.
5. The demographics of NSW and in particular the increase in the ageing population.The Commission is to consider:
1. The model or models of decision making that should be employed for persons who cannot make decisions for themselves.
2. The basis and parameters for decisions made pursuant to a substitute decision making model, if such a model is retained.
3. The basis and parameters for decisions made under a supported decision making model, if adopted, and the relationship and boundaries between this and a substituted decision making model including the costs of implementation.
4. The appropriate relationship between guardianship law in NSW and legal and policy developments at the federal level, especially the National Disability Insurance Scheme Act 2013, the Aged Care Act 1997 and related legislation.
5. Whether the language of ‘disability’ is the appropriate conceptual language for the guardianship and financial management regime and to what extent ‘decision making capacity’ is more appropriate.
6. Whether guardianship law in NSW should explicitly address the circumstances in which the use of restrictive practices will be lawful in relation to people with a decision making incapacity.
7. In the light of the requirement of the UNCRPD that there be regular reviews of any instrument that has the effect of removing or restricting autonomy, should the Guardianship Act 1987 provide for the regular review of financial management orders.
8. The provisions of Division 4A of Part 5 of the Guardianship Act 1987 relating to clinical trials.
9. Any other matters the NSW Law Reform Commission considers relevant to the Terms of Reference.The paper features the following questions -
2. Who can be a guardian or a financial manager?
Question 2.1: Who can be an enduring guardian?
(1) Who should be eligible to be appointed as an enduring guardian?
(2) Who should be ineligible to be appointed as an enduring guardian?
Question 2.2: Who can be a tribunal-appointed guardian?
(1) What should the Tribunal consider when deciding whether to appoint a particular person as a guardian?
(2) Who should be ineligible to act as a guardian?
Question 2.3: When should the Public Guardian be appointed?
(1) Should the Tribunal be able to appoint the Public Guardian as a guardian? If so, when should this occur?
(2) Should there be any limits to the Tribunal’s ability to appoint the Public Guardian? If so, what should these limits be?
Question 2.4: Should community volunteers be able to act as guardians?
(1) What could be the benefits and disadvantages of a community guardianship program?
(2) Should NSW introduce a community guardianship program?
(3) If NSW does introduce a community guardianship program: (a) who should be able to be a community guardian? (b) how should community guardians be appointed? (c) who should recruit, train and supervise the community guardians?
Question 2.5: Who can be a private manager?
(1) What should the Tribunal consider when deciding whether to appoint a particular person as a private manager?
(2) Should the Guardianship Act include detailed eligibility criteria for private managers or is the current “suitable person” test sufficient?
(3) Should the same eligibility criteria apply to private guardians and private managers? If so, what should these common criteria be?
(4) What are the benefits and disadvantages of appointing private corporations to act as financial managers?
(5) Should the Tribunal be able to appoint a corporation to be a private manager? If so, under what circumstances should this occur?
Question 2.6: Should the NSW Trustee be appointed only as a last resort?
(1) Should the Guardianship Act state explicitly that the Tribunal can only appoint the NSW Trustee as a last resort?
(2) If so, how should this principle be expressed in the Act?
Question 2.7: Should the Act include a succession planning mechanism?
(1) Should the Guardianship Act allow relatives, friends and others to express their views on who should be a person’s guardian or financial manager in the future?
(2) What could be the benefits and disadvantages of such a succession planning mechanism?
(3) When deciding who to appoint, should the Tribunal be required to give effect to the wishes expressed in a succession planning statement?
3. What powers and functions should guardians and financial managers have?
Question 3.1: What powers and functions should enduring guardians have?
(1) Should the Guardianship Act contain a more detailed list of the powers and functions that an adult can grant to an enduring guardian? If so, what should be included on this list?
(2) Should the Guardianship Act contain a list of the powers and functions that an adult cannot grant to an enduring guardian? If so, what should be included on this list?
Question 3.2: Should the Tribunal be able to make plenary orders?
(1) What are the benefits and disadvantages of allowing the Tribunal to make plenary orders?
(2) Should the Guardianship Act: (a) continue to enable the Tribunal to make plenary orders (b) require the Tribunal to specify a guardian’s powers and functions in each guardianship order, or (c) include some other arrangement for granting powers?
Question 3.3: What powers and functions should tribunal-appointed guardians have?
(1) Should the Guardianship Act list the powers and functions that the Tribunal can grant to a guardian? If so, what should be included in this list?
(2) Should such a list: (a) set out all the powers that a guardian can exercise, or (b) should it simply contain examples?
3 The role of guardians and financial managers
Question 3.4: Are there any powers and functions that guardians should not be able to have?
(1) Should the Guardianship Act contain a list of powers and functions that the Tribunal cannot grant to a guardian?
(2) If so, what should be included in this list?
Question 3.5: What powers and functions should financial managers have?
(1) What powers and functions should be available to a private manager?
(2) What powers and functions should the NSW Trustee have when acting as a financial manager?
(3) Are the current arrangements for granting powers to private managers adequate? If not, how should powers be granted to private managers?
(4) Should the legislation list the powers that a financial manager cannot exercise? If so, what should be on this list?
Question 3.6: Should the roles of guardians and financial managers remain separate?
(1) What are the benefits and disadvantages of keeping the roles of guardians and financial managers separate?
(2) What are the benefits and disadvantages of combining the roles of guardians and financial managers?
(3) Should the roles of tribunal-appointed guardians and financial managers remain separate?
4. What decision-making principles should guardians and financial managers observe?
Question 4.1: What decision-making principles should guardians and financial managers observe? What principles should guardians and financial managers observe when they make decisions on behalf of another person?
Question 4.2: Should guardians and financial managers be required to give effect to a person’s “will and preferences”?
(1) What are the advantages and disadvantages of the current emphasis on “welfare and interests” in the Guardianship Act’s general principles?
(2) Should “welfare and interests” continue to be the “paramount consideration” for guardians and financial managers?
(3) What could be the benefits and disadvantages of requiring guardians and financial managers to give effect to a person’s will and preferences?
(4) Should guardians and financial managers be required to give effect to a person’s will and preferences?
Question 4.3: Should NSW adopt a “substituted judgment” model?
(1) What could be the benefits and disadvantages of a “substituted judgment” approach to decision-making?
(2) Should the Guardianship Act require guardians and financial managers to give effect to the decision the person would have made if they had decision-making capacity (that is, a “substituted judgment” approach)?
(3) If so, how would guardians and financial managers work out what the person would have wanted? Should the legislation set out the steps they should take?
Question 4.4: Should NSW adopt a “structured will and preferences” model?
(1) What could be the benefits and disadvantages of a “structured will and preferences” approach to decision-making?
(2) Should guardians and financial managers be required to make decisions based upon a person’s will and preferences?
(3) If so, how would guardians and financial managers work out a person’s will and preferences? Should the legislation set out the steps they should take?
(4) What should a guardian or financial manager be required to do if they cannot determine a person’s will and preferences?
(5) Should a guardian or financial manager ever be able to override a person’s will and preferences? If so, when should they be allowed to do this?
