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

The Ultimate Guide to Automating Your Weekend Yard Chores

We all look forward to the weekend as a chance to unwind after a long week of work. You probably picture yourself relaxing on the patio with a cold ...

How Ignoring Regular Car Servicing Can Lead to Costly Repairs

Owning a car gives you a sweet sense of freedom and comfort. You can go wherever you want, whenever you want. But with that freedom comes responsibili...

Someone Trips at Your Fundraiser. Now What? Understanding Public Liability for NFPs

Three months of planning. Volunteers giving up their weekends. Sponsorships chased, catering sorted, tables decorated. And then, about an hour into ...

Stainless Steel Tube: A Complete Specification Guide for Engineers, Project Managers, and Industrial Buyers

Few materials in the industrial and manufacturing world are as universally relied upon — or as frequently misspecified — as stainless steel tube...

How to Choose the Right Barber Shears Scissors for Professional Results

Since a barber is only as good as their tool, choosing the right barber shear scissor must not be taken lightly. Most barbers end up buying the first ...

Why Commercial Construction Companies Play A Critical Role In Modern Urban Development

Urban development requires highly organised planning, engineering expertise, and professional construction teams capable of delivering complex build...

Essential Features for Comfortable Family Caravan Trips

Choosing the right van for family travel requires careful consideration of how the space will be used on a daily basis. Families have specific needs...

Chatswood Tutor: Helping Students Achieve Academic Success With Personalised Learning

Education plays a crucial role in shaping a student’s future, and many students benefit from additional academic support outside the classroom. A pr...

How External Consulting Can Guide Enterprise IT Strategy and Procurement

Internal IT teams carry deep operational knowledge, but that familiarity can create blind spots in strategic decisions. An external IT consultant br...

Why Sports Nutrition Australia Is Important for Performance and Recovery

Athletes and fitness enthusiasts place significant demands on their bodies during training and competition. Maintaining energy levels, supporting mu...

How Body Contouring Bundoora Helps Improve Shape And Confidence

Modern aesthetic treatments have made it possible to refine body shape without the need for invasive surgery. One of the most popular non-surgical o...

Why Plantation Shutters Are a Stylish and Practical Choice for Modern Homes

Window coverings play a major role in the comfort, privacy, and overall design of a home. Homeowners often look for solutions that provide both visu...

Why a Retractable Hose Reel Is Essential for Efficient Water Management

Managing hoses efficiently is important for both residential and commercial environments. Whether watering gardens, cleaning outdoor areas, or maint...

Best Ways to Trade In Your Old Tech for Cash in Australia

Upgrading your mobile is exciting, but many Australians are left wondering what to do with the device they no longer use. Instead of leaving it in a...

Why Doctors in Bundoora Play an Important Role in Community Health

Access to quality healthcare is essential for maintaining a healthy lifestyle and managing medical conditions effectively. Visiting experienced doctor...

Backyard Aesthetics Decoded: Mediterranean, Coastal, Retro, Rustic, and Beyond

Backyard design has come a long way from a patch of lawn, a barbecue in the corner, and a few chairs chosen purely for practicality. Today, outdoor ...

What Stops a Home From Feeling Flat-Pack Generic

There is nothing wrong with convenience. Flat-pack furniture, fast styling decisions, and online checkouts have made it easier than ever to furnish ...

5 Best Dental Clinics in Beecroft, NSW

The best dental clinics in Beecroft, NSW are Beecroft Smiles Dental Surgery, Beecroft Elegant Dental Clinic, McConnell Dental, Dentistry for Life, a...