Undertakings

10.15  The nature and seriousness of guardian or financial administrator appointments can go unrecognised.^[23] For example, the Australian Association of Social Workers noted that ‘it is not uncommon to be aware of appointed decision makers taking actions that are not in the interests of the older person’.^[24]

10.16  A requirement to sign an undertaking presents an opportunity to reiterate the nature and seriousness of the role. The requirement to sign an undertaking was supported by many stakeholders.^[25] It was also a recommendation of the Victorian Law Reform Commission (VLRC) in its report on guardianship (Guardianship Report).^[26] Such an undertaking would be given to the relevant tribunal by the private administrator or private guardian at the time of appointment, and a record of it could be retained on the tribunal’s file.^[27] It may also be included in the recommended national register.^[28] The ALRC does not recommend that a sanction be imposed for a failure to comply with the undertaking. However, a signed undertaking may also be relied on in any subsequent proceedings concerning failure of a decision maker to comply with their obligations.^[29]

Who should sign an undertaking

10.17  In the Discussion Paper, the ALRC proposed that an undertaking should be signed by all tribunal-appointed guardians and financial administrators (including those acting for state bodies of last resort).^[30] However, the Office of the Public Advocate (Vic) submitted that this would be quite burdensome for public guardians and professional and public financial administrators, noting that the Public Advocate (Vic) was appointed guardian of last resort for 862 new matters in 2015–16.^[31] A review of other trustee and public advocate/guardian bodies provides similar statistics. For example, the NSW T&G was made financial administrator for over 1000 clients in 2015–16.^[32] The Public Trustee (WA) took on 684 new appointments.^[33] The Office of the Public Advocate (SA) was appointed as guardian of last resort for 250 new matters in 2015–16.^[34] The Office of the Public Guardian (Qld) was appointed for 807 matters in the same period.^[35]

10.18  In light of this, the ALRC recommends that the requirement to sign an undertaking be limited to newly-appointed private guardians and private financial administrators. During the transitional phase, it may be appropriate to require existing private guardians and private financial administrators to sign an undertaking at the time of reappointment.

Providing information, support and assistance

10.19  Some stakeholders suggested that an undertaking would simply be an additional burden.^[36] The ALRC considers that signing an undertaking is a significant act which may have a large impact on a private guardian or private financial administrator’s appreciation of their role. To be effective, however, it should be accompanied by education, support and assistance to improve the understanding of guardians and financial administrators of their roles, responsibilities and obligations.

10.20  Education has a two-pronged effect. First, training may help inform those decision makers who are unaware of their obligations.^[37] For the small number of people who deliberately set out to exploit or abuse a person, training would reinforce the seriousness of their role and the consequences of any breach.^[38]

10.21  In the Discussion Paper the ALRC asked whether additional support and assistance for guardians and private financial administrators should be provided in the form of:

(a)        compulsory training;

(b)        training ordered at the discretion of the tribunal;

(c)        information given by the tribunal to satisfy itself that the person has the competency required for the appointment; or

(d)        other ways?^[39]

10.22  While stakeholders continued to support training for private guardians and private financial administrators about their roles, obligations and responsibilities,^[40] there was strong opposition to compulsory training.^[41] Those supporting compulsory training emphasised its importance in ensuring all newly-appointed private guardians and private financial administrators have a greater understanding of their roles and responsibilities.^[42] However, compulsory training would place a heavy burden on potential guardians and administrators.^[43] Tanya Chapman of Patrick McHugh & Co Solicitors noted that ‘the requirement for training [of itself] gives … the impression that the appointment may be too onerous’.^[44]

10.23  There are two main alternative approaches:

• making information, training and support available to guardians and private financial administrators on a voluntary basis;^[45] or

• making a guardianship or financial administration order conditional upon the completion of a designated training program.^[46]

10.24  The ALRC considers that the provision of information, support and guidance alone may not be sufficient to facilitate increased understanding of a guardian or financial administrator’s roles and responsibilities.^[47] A 2016 report into decision-making support and guardianship in Queensland found there was ‘limited awareness of the guardianship principles and the roles and responsibilities of attorneys, guardians and administrators’.^[48] This is despite the availability of online guidance, and access to a helpline for private guardians in Queensland.^[49] The Office of the Public Advocate (Vic) supported this view:

OPA ran the Private Guardian Support Program (PGSP) until 2008, and, since then, has offered support to private guardians through the OPA Advice Service. Through these program areas, OPA has found that few private guardians seek OPA’s support or advice. Further, OPA’s experiences with providing advice to private guardians suggest that they are largely uninformed about the scope of their role.^[50]

10.25  The key question is how to ensure those people who most need support and assistance in fulfilling their roles get access to it. State and territory tribunals may have an important role to play here. Tribunals must be satisfied of the guardian or financial administrator’s suitability, competency and compatibility.^[51] They are also empowered to make conditional guardianship and financial administration orders.^[52] The tribunal’s role and powers present an opportunity to assess whether the proposed guardian or financial administrator could better understand their roles and responsibilities.^[53] If the tribunal considers that a guardian or financial administrator could benefit from additional education and training to enhance their understanding of their roles and responsibilities, they have the power to make a guardianship or financial administration order conditional on the successful completion of a designated training program.^[54] This approach was adopted in the VLRC Guardianship Report.^[55]

Exercise of tribunal discretion

10.26  Concerns were raised that a requirement to complete training might impede the timely appointment of guardians and financial administrators, especially as applications can often be urgent.^[56] The Office of the Public Guardian (Qld) noted, for example, that

the vast majority of guardianship appointments are driven by the need for decisions to be made regarding permanent residential aged care. These appointments are often instigated by hospitals where there are concerns that the adult is unable to be returned from the hospital to live independently in their own home.^[57]

10.27  However, it is not necessarily an impediment to a tribunal exercising its discretion to require that a guardian or financial administrator undergo training. For example, as suggested by Seniors Legal and Support Service Hervey Bay, a tribunal might make an appointment conditional upon the training being completed within a set time period.^[58]

10.28  One suggestion was that tribunals might choose to adopt a standard practice or presumption that, in the absence of compelling reasons why it should not do so, the tribunal would require all newly-appointed private guardians and private financial administrators to undertake training.^[59] A standard practice or presumption would have the advantage of ensuring greater numbers of guardians and private financial administrators are well informed of their roles and responsibilities. It may also reduce the likelihood of additional delays in the tribunal process by circumventing the need for additional specific questioning about a guardian or financial administrator’s understanding of their roles and responsibilities. However, concerns raised about the deterrent effect of compulsory training on those who may otherwise have been willing to take on the roles also apply to this approach. This approach may also require legislative amendment.

10.29  A preferable approach might be for the tribunal to make an order for training only when it is satisfied that additional training is required or would be beneficial. If this approach is adopted, all private guardians and private financial administrators should be provided with guidance material at the time of appointment. Guides such as Victoria’s ‘Good Guardianship’ guide and the ‘Administration Guide’ are examples of material that could be provided at the time of appointment.^[60] There is also scope to provide information and guidance to guardians and private financial administrators at the point of registration.^[61]

10.30  The ALRC commends the work of state and territory bodies, including tribunals, trustee bodies and offices of the public advocate and guardian in making information, training and support available to private guardians and private financial administrators.^[62] The availability of materials and support on such matters is an important and continuing source of support and assistance for private guardians and private financial administrators as they fulfil their roles.

10.31  Stakeholders highlighted the importance of ensuring training was available through both online and face-to-face modes of delivery, particularly for guardians and private financial administrators living in rural and remote regions.^[63] There was also an emphasis on the need for the available material to be developed in a culturally sensitive manner and available in a range of community languages.^[64]