choices v incapacity – a legal perspective

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MAKING
MEDIATION
MAINSTREAM
Jane Anderson, Deputy President
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
Who is the
Guardianship
Board?
Guardianship Board members have
specific knowledge, qualifications or
experience in areas such as: Law,
Medicine, Psychiatry, Psychology,
Nursing, Social Work and Community
Work .
There is a full-time President, and parttime Deputy Presidents who are all
experienced lawyers.
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
Guardianship &
Administration
The Guardianship Board makes decisions pursuant
to the Guardianship and Administration Act 1993
The Board receives Applications for Guardianship
Orders (GO) and Administration Orders (AO).
Guardianship= Personal decisions; e.g
accommodation, lifestyle, health.
Administration= Legal, business, financial decisions.
Person must have a mental incapacity.
Informal arrangements insufficient?
If there is an Enduring Guardian &/or Enduring Power
of Attorney are they unwilling, unavailable,
incompetent or negligent?
Should their powers be revoked?
GO-
Full or Limited Order?
Private or Public Guardian (Public
Advocate)?
AO – Full or Limited Order?
Private or Public Administrator (Public Trustee)?
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
What is mental
incapacity?
Defined in the Guardianship and
Administration Act as:
the inability of a person to look after his
or her own health, safety or welfare or to
manage his or her own affairs as a result
of:
(a) any damage to, or any illness,
disorder, imperfect or delayed
development, impairment or
deterioration, of the brain or mind; or
(b) any physical illness of condition
that renders the person unable to
communicate his or her intentions or
wishes in any manner whatsoever.
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
What is mental
incapacity?
The causes of mental incapacity can
include, amongst other things, dementia,
intellectual disability, mental illness,
coma etc.
To satisfy the definition of mental
capacity, the condition must affect the
person’s ability to make decisions. For
example, the person:
May lack a full understanding of their
own actions or actions of others;
May not fully appreciate the
consequences of their actions;
May take unreasonable risks affecting
their health and welfare.
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
Mental Incapacity
A person recovering from a brain injury
or stroke may go through a brief period
of fluctuating or ‘borderline’ capacity
before regaining capacity, if capacity
is ever regained.
The brain function of a person with
dementia will decline over time. There
may be a brief period of fluctuating or
‘borderline’ capacity.
A person with mental illness may have
long periods of capacity and shorter
periods of obvious incapacity.
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
A person recovering from a brain injury or stroke may go through a brief period of
fluctuating or ‘borderline’ capacity before regaining capacity, if capacity is ever regained.
The brain function of a person with dementia will decline over time. There may be a
brief period of fluctuating or ‘borderline’ capacity.
Section 5
principles
(a)consideration (and this will be the
paramount consideration) must be
given to what would, in the opinion of
the decision maker, be the wishes of
the person in the matter if he or she
were not mentally incapacitated, but
only so far as there is reasonably
ascertainable evidence on which to
base such an opinion; and
(b) the present wishes of the person
should, unless it is not possible or
reasonably practicable to do so, be
sought in respect of the matter and
consideration must be given to those
wishes; and
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
(c) consideration must, in the case of
the making or affirming of a
guardianship or administration order,
be given to the adequacy of existing
informal arrangements for the care
of the person or the management of
his or her financial affairs and to the
desirability of not disturbing those
arrangements; and
(d) the decision or order made must
be the one that is the least restrictive
of the person's rights and personal
autonomy as is consistent with his or
her proper care and protection.
[District Court case of Bronte
Murchison; Appeal of Guardianship
Board decision District Court No
273/2005]
“Past” wishes paramount
The Guardianship Board, guardians & administrators are
bound by section 5 principles. The principles apply
when making decisions about and for the vulnerable
person.
“Past wishes” of the vulnerable person can be
interpreted in a way which will indicate the core beliefs
and values of that person.
“Substituted Judgement Model” - seeks to approximate
what the person would decide at the time when a
decision is needed, if the person’s capacity had not been
impaired and if the person had access to current
information and advice.
Recognizes that people often change their minds when
they have accurate information about outcomes. This
approach more closely approximates the concept of
“authentic” substitute decision, or “walking in the shoes
of another”.
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
Changing your
mind
Sometimes people with a mental
incapacity change their mind about
important things in their life. For
example:
Who it is they want to be in charge
of their affairs – personal and
financial;
Who should be allowed into their life;
(e.g to visit &/or take on outings);
Who is to be kept informed of
significant health events;
Who is to be excluded from their life.
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
Changing your
mind
People can change their allegiances
because of:
1.Family Conflict;
2.New people entering into the
person’s life;
3.Neurological degeneration;
4.Depression and other Mental
Health issues.
5.Elder abuse/undue influence
(Supreme Court case of Western v
Male [2011] SASC 75)
“RED FLAGS” - “monopolising the
attention of the person, attempting to
influence documents, attempting to make
appointments for the person, attempting to
go along to all the appointments and not to
let that happen independently,… a
discouragement of… closeness with other
relatives or friends”
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
Family Conflict/
Elder Abuse
What can you do about it?
Application to Guardianship Board
Suitability for Mediation
Attempt to reach agreement by the
parties
Aim to resolve matter on the day.
A workable solution and permission
to move on from the conflict.
“After-sales service” by the
Guardianship Board
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
15A Mediation
Registrar, Board, President or Deputy
President may refer the matter for
mediation
Board may endeavour to achieve a
negotiated settlement of any
proceedings or resolution of issues in
any proceedings
Where a matter is settled under this
section, the Board may embody the
terms of the settlement in an order.
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
Mr Brown *
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
THANK YOU
[email protected]
Image credit: Sam Noonan
Guardianship Board
South Australia
guardianshipboard.sa.gov.au/
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