Adult Guardianship laws in the NT face major over haul

16 May 2016

Since 1988 vulnerable persons in the NT have enjoyed the protection of robust procedures and free legal representation in the appointment of a guardian. The Adult Guardianship Act 1988 ensures that those with intellectual disabilities are afforded the comfort of a strict screening procedure to assess their eligibility for guardianship, an informal process in the Local Court with an independent Applicant (Executive office of Adult Guardianship) and an independent legal representative to conduct investigations, obtain views, wishes and instructions where possible and advocate for the vulnerable person best interests. Section 13 (2) places mandatory obligations on the Executive office to ensure that that the person in respect of whom the application is made is legally represented before the Court.

It is difficult to imagine a more intrusive intervention into an individual’s basic rights than to have a person appointed (often a person not known to them through the office of the Public guardian) to make decisions with respect to their own personal welfare, lifestyle and management of their finances. The need for such intervention usually arises when family members or health professionals are concerned about an individual’s capacity to make reasonable judgements or informed decisions relevant to daily living (see section 3). Interestingly until the introduction of the Advanced personal planning Act in 2014 there was no mechanism available to Territorians to create instruments to appoint decision makers for life style and well being in the event of the individual suffering a subsequent legal incapacity. Financial matters on the other hand could be arranged in advance pursuant to the Power of Attorney Act or if no such instrument had been prepared, a protection order could be sought under the Aged and Infirm Persons’ Property Act 1980. In all other respects a guardian could only be considered once the elements of intellectual disability could be satisfied under the Adult Guardianship Act.

The current Guardianship regime is far from perfect however it is robust enough to ensure that the motives of those seeking orders over an individual are independently tested in line with principles underlying the current process which include the promotion of the individuals’ best interests, wishes and the least intrusive means of intervention. The new regime proposed by the introduction of the Guardianship of Adults Bill is certainly welcome after nearly 30 years of the current regime however the glaring omission of independent legal representation is highly concerning.

The new bill purports to introduce the following major changes:

  • Transfer of jurisdiction to the NT Civil and Administrative Tribunal (NTCAT) freeing up the Local Court;
  • Creation of independent statutory officer as Public Guardian, currently the Health minister is the public guardian giving rise to significant conflict of interest;
  • New tests to assess impaired decision making capacity which are much broader providing eligibility for those with mental illness or episodic and varied impairment;
  • More flexible provisions for parties to seek review of Guardianship orders; and
  • Broader powers to make health care decisions for protected persons without the need for consent from the court.

All of the above are ostensibly sensible proposals with significant detailed guidance for those charged with decision making authority and clearly articulated principles for those exercising authority or functions under the new Act. Notwithstanding these positive moves there is no reference whatsoever in the Draft Bill for the appointment of independent representation for those subject to applications. Respondents are at the mercy of the Tribunal to either appoint a Litigation Guardian (who can’t be lawyers and can’t be paid) under section 104 the NTCAT Act, or alternatively a party to proceedings in NTCAT is entitled to representation under section 130 of NTCAT Act. There is no mechanism to ensure that the vulnerable person subject of the application can access free legal representation. The disadvantage to them is readily apparent. The current system ensures representation funded by the Solicitor for the NT. No such scheme appears to have been contemplated in any of the discussion papers prepared by the NT government at the time of writing.

The Consultation period has recently concluded and it will be interesting to see if the Draft remains in its current form once assent is sought in June 2016.

This article was written by Andrzej Kudra, Special Counsel and Tony Morgan, Partner.

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