Modern Australian
Men's Weekly

.

do we have conservatorships in Australia?

  • Written by Linda Steele, Senior Lecturer, Faculty of Law, University of Technology Sydney
do we have conservatorships in Australia?

News Britney Spears’ father has agreed to step down from her conservatorship might have you wondering how equivalent laws work in Australia.

Australia doesn’t have “conservatorships” but rather guardianship and financial management laws for each state and territory.

Traditionally, there have been three legal options for appointing other people to manage your money and your affairs.

One is through the Supreme Court, which is a very formal process out of reach for many. A second option is through state-based mental health laws for temporary financial management while an individual is detained in a mental health facility.

A third option is via state-based guardianship tribunals. Exactly how it works varies from state to state, so check the links below for details:

Guardianship tribunals

In most cases, financial management and guardianship laws relate to people who have been deemed incapable of managing their affairs, or who are considered in need of a financial manager or guardian, because of a disability.

That might include a person with a mental health condition, an intellectual disability, dementia or a disability affecting their ability to communicate their decisions.

Since the 1980s, state-based tribunals (made up of people with different expertise) have been able to make decisions to appoint someone to be a financial manager and someone to be a personal guardian.

In general, financial managers (sometimes called “administrators”) take care of the money side of things while a personal guardian makes decisions around their health and lifestyle.

Guardians can also play a major role in decisions about “restrictive practices” that normally involved limitations being placed on a person’s ability to move around (sometimes via physical or chemical restraints). Guardians might also be given power to make decisions regarding special medical treatments — for example, whether to put a person on long-acting contraception.

To have a financial manager or guardian appointed, a person has to make an application to the court or a guardianship tribunal. The applicant might be a government employee, a family member, a service provider or a medical professional who forms the view the individual in question doesn’t have the capacity to make their own decisions.

Read more: Freeing Britney requires reconsidering how society thinks about decision-making capacity

Two trends in Australia

Australia has recently seen two trends in relation to financial managers and guardians.

Firstly, we are seeing more people living with dementia having financial managers appointed. This can be to prevent financial abuse or it can be a form of financial abuse in itself.

The second trend relates to the National Disability Insurance Scheme (NDIS). The creation of the NDIS has resulted in people who previously had their affairs managed informally by friends or family now needing to get financial managers and guardians appointed. For some, that has resulted in less control over their affairs.

When someone applies to a tribunal to have a financial manager appointed, the tribunal will consider factors such as

  • how capable the person with disability is and what might in in their best interests

  • what family support they have around them

  • what might occur if a financial manager was not appointed.

Getting a decision reviewed

In most jurisdictions, guardianship and financial management orders are subject to routine reviews. Under the legislation, the welfare and interests of the person whose affairs are being managed are meant to be given paramount consideration. In practice, however, once a financial manager or personal guardian is appointed, it can be difficult to get them removed.

It can also be difficult to prove that circumstances have changed and that the financial manager or guardian is no longer needed. This is especially the case if the person is still contending with poverty and/or social isolation, or doesn’t have access to social networks or resources to support them to make decisions, or has not been provided with opportunities to develop their skills.

According to the Intellectual Disability Rights Service (IDRS):

Many of the people contacting IDRS about financial management orders find the restrictions very distressing, frustrating and detrimental to their lives. They are often limited in the social activities they can enjoy. Moreover, most are frustrated and angry with their financial managers (especially where the financial manager is a government agency).

Read more: Britney Spears's conservatorship alludes to an older story of controlling women artists

Substituted decision-making versus supported decision-making

Financial management and guardianship laws involve what experts in this field call “substituted decision-making”, because someone else is making decisions on behalf of an individual with disability.

United Nations bodies and Australian Disabled People’s Organisations have long argued for the abolition of substituted decision-making laws and the introduction of supported decision-making systems based on a person with disability’s “will and preferences”. The latter aims to provide access to support and resources for people to make their own decisions about their finances and other aspects of their lives.

The United Nations Committee overseeing the Disability Convention in 2019 expressed concern Australia has made little progress to abolish substituted decision-making regimes, and replace it with supported decision-making systems. The same UN committee also urged the Australian government to eliminate restrictive practices.

Only Victoria has changed its laws to formally incorporate the UN Convention into its Guardianship and Administration Act 2019 and even this law still employs mechanisms for substituted decision-making in many cases.

The Royal Commission into Violence, Abuse Neglect and Exploitation of People with Disability is currently exploring guardianship and financial management laws, so the discussion regarding guardianship laws and the role of the will and preferences of people with disability is not going away.

Authors: Linda Steele, Senior Lecturer, Faculty of Law, University of Technology Sydney

Read more https://theconversation.com/freebritney-has-many-of-us-wondering-do-we-have-conservatorships-in-australia-166095

Elevate your Perth workspace: Sleek tech with managed IT Services

In today's fast-paced business environment, having a reliable and efficient IT infrastructure is no longer a luxury, it's a necessity. For businesse...

7 Ways a Luxury Australian Cruise Transforms Your Travel Expectations

Dreaming of your next holiday? Forget the crowded tourist traps and consider something truly special: a luxury australian cruise. More than just a ...

How Polycarbonate Became the Backbone of Modern Australian Design

The design landscape in Australia has been audacious, innovative and climate-conscious at all times. Design in this area is all about striking a balan...

Affordable Invisalign in Bangkok Why Australians Are Choosing Thailand

More Australians are investing in Invisalign to straighten their teeth, but the treatment in Australia can cost thousands of dollars and often takes m...

Designing a Tranquil Oasis in Your Backyard

Nothing beats a warm summer evening spent in a gorgeous backyard. The backyard is the perfect space to unwind and spend some of the most magical momen...

How a Well-Designed Gym Can Improve Your Performance

Have you ever entered a gym that just feels off and couldn’t focus on your workout? Maybe it’s the layout that was weird, or the lack of natural l...

Wellness Checkups at Work: Key to Employee Happiness and Higher Output

Employee wellness programs are reshaping how companies think about productivity and satisfaction. When people feel healthy, they perform better, sta...

Experience the Elegance of Plantation Shutter Blinds: Enhance Your Décor Today

When it comes to elevating your home’s interior, few window treatments combine sophistication and practicality as effortlessly as plantation shutter...

Common Questions Women Are Afraid to Ask Their Gynaecologist (and Honest Answers)

Visiting your gynaecologist isn’t always easy. Even though reproductive and sexual health are essential parts of overall wellbeing, many women fee...

Designing Homes for Coastal Climates – How to Handle Salt, Humidity, and Strong Winds in Building Materials

Living by the ocean is a dream for many Australians, offering breathtaking views, refreshing sea breezes, and a relaxed lifestyle that’s hard to b...

This OT Week, Australia’s occupational therapists are done staying quiet

Occupational Therapy Week is typically a time to celebrate the difference occupational therapists make in people’s lives. But this year, many sa...

Melbourne EMDR Clinic Sees Growing Interest in Patients with Depression

Depression is a common mental health condition affecting around 1 in 7 Australians. It is typically diagnosed when an individual has experienced a p...

Proactive approaches to mental wellbeing

Life gets busy quickly. For many adults, each week is a constant mix of work commitments, raising kids, managing a household, settling bills, catching...

The Power of Giving Back: How Volunteering Shapes Your Mindset

To say the least, volunteering can maximally change the way you see the world. Period. When you step into someone else’s shoes, even for a few hours...

How to Level Up Your Workouts with Simple Home Equipment

Working out at home has reached the peak of its popularity. Whether you’re short on time or simply prefer the comfort of your own space, home traini...

How to Prepare Financially for Buying a Home

Buying a house is one of the biggest and most exciting money choices you'll ever make. It means you stop giving rent money to someone else and start b...

Why Choosing Local Lawyers in Brisbane Can Make All the Difference

When it comes to legal matters, your choice of representation can influence both the outcome and overall experience. Working with local lawyers in B...

Restoring Volume and Style with Human Hair Toppers for Women

Hair plays a significant role in confidence and self-expression, but thinning hair and hair loss can affect women at any stage of life. While wigs p...