Health justice partnership supports Joseph to realise his human rights in Guardianship proceedings

The Convention on the Rights of Persons with Disabilities (CRPD) is an agreement by countries around the world, including Australia, to make sure that people with disability are treated equally under the law. Despite being already protected under the Universal Declaration of Human Rights, the rights of people with disability are often violated.  Persons with impaired capacity, who are involved in guardianship proceedings, may need supports to realise their rights to participate, have their views and wishes considered and have their decision-making autonomy restricted to the least extent possible. 

Joseph, an 82-year-old man, has been diagnosed with early-onset dementia and was admitted to hospital. Joseph did not have anywhere to live upon discharge from hospital and this was one factor delaying his release. While Joseph was in hospital, health staff developed concerns about his capacity to make decisions and arrange future accommodation for himself, as well concerns about Joseph being at risk of elder abuse from his adult daughter.  Hospital staff made an Application for Guardianship and Administration.  Joseph’s daughter also made an Application to be appointed Joseph’s financial administrator. 

What are guardians and administrators? 

A guardian is someone appointed to deal with the personal and health matters of an adult. These matters include decisions about medical treatment, accommodation, contact with friends and family, and support services. An administrator is someone appointed to manage the financial matters of the adult (s 12 Guardianship and Administration Act 2000 (Qld) (Guardianship Act)). 

Joseph was referred to Caxton Legal Centre’s health justice partnership, the Older Person’s Advocacy and Legal Service (OPALS) OPALS is a multi-disciplinary service that provides integrated legal assistance and social work supports to older persons in hospital and after discharge, to support their decision-making and address any risk of elder abuse.  

OPALS learned that Joseph had not been provided a copy of the Applications made to QCAT.   

Adults have the right to participate in decisions affecting them 

Queensland’s guardianship system recognises the right of an adult to participate to the greatest extent practicable in decisions affecting their life. The person has a right to have the least restrictions available imposed upon them and to have their views and wishes considered.  Isome Guardianship applications these rights are denied This can occur as a result of practical barriers such as where Applications are sent to the person’s home address rather than their hospital bed so that they are not aware of the proceedings. Hospital staff or family may not inform them of the proceedings. The fact that an older person may be living with ill health or care needs does not diminish their right to participating in legal proceedings which affect them.

OPALS ensured Joseph was fully informed of the nature of the proceedings and his rights.  Joseph didn’t want a substitute decision-maker for all decisions but acknowledged he did need some supports. OPALS attended the hearing with Josephhis hospital social worker and registrar. The OPALS lawyer advocated for an order that would be least restrictive on Joseph’s rights to make his own decisions. The appointments of Guardian and Administrator were made for a period of one year, with the appointment of the Guardian for a limited scope of assisting with accommodation only and the Administrator for complex financial matters to do with selling Joseph’s home. Joseph’s daughter withdrew her Application

Joseph was not completely satisfied with the outcome as he wanted to continue to make his own decisions himself but he was optimistic at the prospect of finally leaving the hospital. OPALS’ assistance ensured Joseph was treated equally under the law, that he was able to participate with dignity and respect and that the orders made recognised his human rights.