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CEO: Time to act as demand surges

Cite as: July 2012 86 (07) LIJ, p.6

People with disability deserve better protection.

Law reform has many drivers. The melting pot of political, business, media, civil society and other interests can lead to both good and bad policy, often knee-jerk, and sometimes deadlock. In our ever shortening news cycle it often seems that reform imperatives come from the biggest flash in the pan. But sometimes, social change creeps up on us, so that law reform becomes inevitable.

On 18 April this year, the Victorian Attorney-General Robert Clark tabled in Parliament the Victorian Law Reform Commission (VLRC)’s Guardianship: Final Report (http://tinyurl.com/6s5v358). With 440 recommendations for reform, and discussion and analysis totalling 610 pages, this is no simple catch cry for change. The considered and measured report is the result of the tireless work of many, including lawyers, with a shared vision: that people with a disability deserve more.

The VLRC’s reform proposals aim to ensure that guardianship and administration law in Victoria is responsive to the needs of, and advances, promotes and protects the rights of, people with impaired decision-making capacity.

Increasingly, “users” of the guardianship system are affected by dementia and other age-related disabilities – a result of our ageing population. The progressive loss of capacity that often comes with age-related disabilities creates new challenges for the law, as grey takes over from black and white, and families dispute what mum or dad would have wanted.

Growing awareness about the complexities of elder abuse, which most often is at the hands of family members, led the VLRC to make important recommendations for improved oversight and accountability of substitute decision-makers, including an investigative role for the Office of the Public Advocate.

People with mental illness are also increasingly subject to the guardianship system, which does not presently cater well for people with fluctuating capacity.

The VLRC report recognises the importance of improving our system for enduring powers of attorney and encouraging people to plan for the future and the unexpected so that appointments by the Victorian Civil and Administrative Tribunal (VCAT) are a last resort.

The VLRC has adopted many of the LIV’s recommendations to the review, and we commend its rigorous approach to research and its commitment to broad consultation. (See Victorian Law Reform, p78)

Important recommendations include:

  • a single new Guardianship Act that provides for all personally and state-appointed substitute decision makers and clear legislative tests for capacity and incapacity;
  • streamlining personal appointments, by merging guardianship and medical treatment enduring powers of attorney and harmonising activation provisions;
  • significant overhaul of the Medical Treatment Act 1988 (Vic) and new binding advance health care directives (with some exceptions);
  • establishing a compulsory online register for personal and state appointments;
  • improved accountability, including increased oversight of personal appointments, civil penalties for abuse, neglect and exploitation by substitute decision-makers, and merits review of decisions by the Public Advocate, State Trustees and professional administrators and guardians; and
  • amendment to VCAT processes, including a right for represented persons and proposed represented persons to legal representation.

Some aspects of the report require further analysis, and the LIV’s Elder Law, Succession Law, Health Law and Disability Law committees are working through the VLRC’s recommendations. For example, we have been cautious about proposals for new mechanisms to formally recognise supported and co-decision making, which we believe might lead to significant practical problems. We are conscious, however, that these proposals respond to a strong desire from the disability sector for empowerment to maximise autonomy for people experiencing disability, in the spirit of the United Nations Convention on the Rights of Persons with Disabilities, and we will be working to consider how best this objective can be achieved.

Our Inter-professional Health Law Forum, convened jointly with the Australian Medical Association (Vic), will further consider the implications of the report for advance care planning, from both legal and health care perspectives.

There is much for government to consider in the guardianship report, and we look forward to working with the Attorney-General to ensure meaningful reform that will make a difference to people’s lives. We will continue to ensure that reforms are informed by our members’ experience and expertise in this area.

In the current economic climate, the real challenge will be ensuring that sufficient resources are allocated to support reform, in particular to the Office of the Public Advocate and VCAT, and to establish the online register for appointments. As baby boomers deal with ageing parents, and the need to plan for our own future becomes more pressing, law reform is likely to shift from being sensible to unavoidable. We have a road map for change – let’s implement good policy now.

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