Victoria’s guardianship laws showing their age

The Victorian Law Reform Commission says the state’s guardianship laws—widely regarded as among the best in the world when first developed in the 1980’s—should be modernised to meet the needs of our changing population. The Commission is seeking community feedback about its proposals for reform of Victoria’s guardianship laws set out in a consultation paper released today.

Guardianship laws help people who are unable to make their own decisions about important matters because of disability by allowing for the appointment of another person to make personal, financial or medical decisions for them.

In releasing the Commission’s consultation paper on guardianship laws, Chairperson Professor Neil Rees said that Victoria needed guardianship laws designed for 21st century users and conditions. The paper proposes the introduction of completely new guardianship laws rather than further amendments to the current Guardianship and Administration Act which has been amended nearly 30 times since 1986.

“We must ensure that Victoria’s guardianship laws respond to the current and future needs of people with impaired decision-making capacity and are as easy to understand as possible,” Professor Rees said.

“The current legislation was designed to serve the needs of people with an intellectual disability when they were leaving institutions a generation ago. Now, people with age-related disabilities are the main users of guardianship laws, and the number of Victorians who will need these laws is likely to explode with the ageing population,” he said.

Professor Rees said that there were nearly 80,000 people with significant cognitive impairment in Victoria in 2010. This number is projected to grow to nearly 100,000 in 2020 and should reach almost 125,000 by 2030.

The ageing population will also result in an increasing case load for the Office of the Public Advocate in Victoria which dealt with over 1500 guardianship cases in 2010. This caseload is likely to increase dramatically over the next two decades.

Professor Rees said the draft reforms aim to shift thinking away from the past where the primary focus was protection for people with a disability, to a modern approach which promotes participation. That is, enabling people to participate in decisions that affect them, and in the life of the community, as much as possible. 

“It is essential, however, that we retain and strengthen checks and balances so that vulnerable people have adequate protection when a decision concerning personal and financial matters is made on their behalf,” Professor Rees said.

“There is widespread concern about elder abuse in our community. The Commission has proposed that the powers of the Public Advocate be expanded greatly so that she could investigate possible abuse of people with a disability and take legal action against alleged wrongdoers,” he said.

The reform proposals also aim to recognise the needs of those people whose capacity fluctuates over time, or who can make their own decisions with some assistance by introducing mechanisms for supported and co-decision making that have already been used in Canada for a few years.

“Our proposals respond to the varying levels of capacity, varying needs and experiences and varying levels of support of people who might need some assistance with decision making, regardless of their type of disability,” Professor Rees said.  

The consultation paper considers how these proposed new laws could work in practice, including issues such as how doctors and banks may be able to easily check if someone has appointed another person to assist them with decisions, or if a tribunal has appointed someone to play this role. The Commission is seeking responses from the community about these suggestions.

Submissions in response to the proposed reforms can be made in writing and submitted via post, email or on the Commission’s website Submissions are due by 20 May 2011.

The final report to the Attorney-General, including recommendations for new laws, is due in December 2011.

09 Mar 2011

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