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Frequently asked questions

 

Can the Public Guardian assist in a hearing before the Guardianship and Administration Board?

In certain circumstances, the Public Guardian can represent people with disabilities before the Board or intervene in proceedings if that becomes necessary.

When will the Public Guardian be appointed as guardian?

The Guardianship and Administration Board makes the decision to appoint the Public Guardian as guardian. This will normally only occur where no one else is available or suitable to take on the role as a substitute decision-maker on behalf of a person with a disability.

If the Public Guardian is appointed as the guardian of an individual, the Public Guardian will act:

  • in the best interests of a person under guardianshi;
  • in consultation with the represented person, taking into account, as far as possible, his or her wishes
  • as an advocate for that person
  • to encourage that person to participate as much as possible in the life of the community
  • to encourage and assist that person to become capable of caring for himself or herself and to make reasonable judgements relating to his or her person
  • to protect that person from neglect, abuse or exploitation

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If the Public Guardian is appointed as the guardian of a represented person, what decisions can be made about the represented person?

A guardianship order appointing the Public Guardian as full guardian gives the Public Guardian all the powers and duties that a parent would have toward their child.

This includes the ability to decide:

  • where the represented person will live, whether permanently or temporarily
  • with whom the represented person will live
  • whether the represented person should or should not be permitted to work and if so, the nature and type of work and any related matters about work
  • to restrict visits to a represented person to such extent as may be necessary and to prohibit visits by any person if the guardian reasonably believes they would have an adverse effect on the represented person

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Can the Public Guardian assist in situations where people with disabilities are being abused or unlawfully detained?

Yes. If the Guardianship and Administration Board receives information that a person with a disability is in immediate danger or is unlawfully detained, the Board may empower the Public Guardian to visit the person in the company of a police officer and report to the Board about the condition of the person.

If the Board is satisfied that the person is in danger or is unlawfully detained, they may make an order enabling the person to be taken to a safe place.

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Can the Public Guardian work with community groups?

Yes. The Public Guardian can play a role in fostering the provision of services and facilities for persons with a disability, and can also support the establishment of organisations which support people with disabilities.

The Public Guardian is also available to assist with the development of any programs that support people with disabilities, including advocacy programs, educational programs, and programs to encourage people to act as guardians and administrators.

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Can the Public Guardian assist people with disabilities without being appointed as their guardian?

Yes. The Public Guardian can deal with anyone providing services to people with disabilities, including government departments and the private sector. The Public Guardian can intervene whenever someone with a disability is being treated unfairly in obtaining the services they require.

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Does the Public Guardian have any broader powers of investigation?

The Public Guardian can investigate, report and make recommendations to the Minister on any matter relating to the operation of the Guardianship and Administration Act.

The Public Guardian can also investigate complaints and allegations concerning the actions of a guardian or administrator or a person acting or claiming to act under an enduring power of attorney.

If requested to do so by the Board, the Public Guardian must investigate and report to the Board in relation to a matter before the Board.

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What other assistance can the Public Guardian provide?

The Public Guardian is available to give seminars on the functions of the Guardianship and Administration Board, the functions of the Public Guardian, and the operation of the Act.

The Public Guardian is also able to give advice on the powers that may be exercised under the Guardianship and Administration Act relating to persons with a disability and on appropriate alternatives to taking action under the Act.

What is the scope of a Guardian's decision making?

A guardian acts in the best interests of a represented person when they have a decision-making incapacity.

A guardians power is limited by the order made by the Guardianship and Administration Board. These powers could include the right to make decisions about the persons accommodation, their health treatment, the people with whom s/he will have contact, and any other matters set out in the order, where such an order has been legally made.

A guardian does not make decisions about financial or legal matters, nor can they obtain financial resources or create services for adults.

The Public Guardian is only appointed by the Guardianship and Administration Board when there is no family member available or willing to take on the role of making complex decisions, or when there is conflict within the family, or when there is conflict between the family and service providers.

Guardianship Orders can either be limited to specific functions, or can be plenary, which means they give the guardian the ability to make decisions in most areas of a persons life. Under either type of order a guardian cannot be appointed to make a will on behalf of the person they represent, to vote on their behalf, or to consent to their marriage.

Decisions about where a person should live, permanently or temporarily

This gives the Public Guardian the right to take the following actions or decisions:

  • Request an assessment of their accommodation needs, by services appropriate to the persons disability (eg. Aged Care Assessment Team, Mental Health or Disability Services)
  • Request specific allied health assessments to address identified needs (eg prior to a person returning home from hospital request that an Occupational Therapist assess a persons home and make recommendations)
  • Visit the current or proposed accommodation to determine the guardians view about whether the accommodation meets the persons needs
  • Seek information about standards monitoring, accreditation, licensing and other matters from the place of proposed accommodation
  • Seek information about the proposed accommodation through consultation with family, service providers, and others
  • Investigate the possibility of community services varying their management and support strategies to maintain a person in their home
  • Investigate the possibility of agencies developing appropriate strategies to maintain a person to live in less restrictive accommodation (ie an aged care hostel rather than a secure nursing home)
  • Request of attend case/other meetings to discuss accommodation issues
  • Make complaints on behalf of a person to managers of accommodation services or relevant complaints, accreditation, monitoring or funding bodies
  • Provide/withhold consent to a person remaining in their current accommodation
  • Provide/withhold consent to a nominated accommodation option (whether permanent or temporary)
  • Negotiate, or request that negotiations be carried out by the service coordinator or case manager, with the person about their accommodation alternatives before any decision is taken to move the person against his/her wishes 
  • Authorise others (eg health care workers, Tasmanian police or ambulance) to transfer a person to alternative accommodation
  • Provide/withhold consent to an admission to a health care facility (but any specific tests or treatment procedures would need to be done under a health care function or treatment order)
  • Provide consent to accommodation on a trial basis

What kinds of actions does the Public Guardian NOT undertake in relation to accommodation decisions?

  • Find, or provide, accommodation for a person
  • Take a person to new accommodation, or locate and bring them back if they leave that accommodation
  • Assess a persons accommodation and support needs.

These actions are the responsibility of a persons case manager or primary support agency, in conjunction with other appropriate service providers.

  • Pay or negotiate fees for accommodation

This is the responsibility of the person, a person acting informally on their behalf, their enduring power of attorney or their administrator.

Decisions about with whom the represented person is to live or the restriction of visits to them

These powers give the Public Guardian the ability to make the following decisions or actions:

  • Seek an informal, and negotiated, arrangement for visits and/or contact
  • Request that service coordinators develop an access plan in consultation with family and/or friends
  • Request that service providers monitor visits (outlined in an access plan) and provide support to the person under guardianship during those visits, if necessary
  • Request reports of, or data collection relating to, the impact of these visits on the person
  • Request that others assist the person to gain a restraint order
  • Make representation to the Tasmanian police, requesting that a complaint be made
  • Request assessments of a persons capacity to make visiting/contact decisions, or of the impact of such visits upon a person
  • Request or attend case/other meetings to discuss access issues
  • Provide/withhold consent to visits or contact at given times/location, and dependent upon certain conditions (ie supervised access only)
  • Make decisions that limit contact to a person under guardianship, or in certain circumstances deny contact
  • Request proposals for times and dates of visits from family/friends/others
  • Consent, or decline consent, to proposals for phone or written access
  • Request, on the persons behalf, that accommodation services and/or administrators assist a person to change the locks to their home or change their telephone number to ensure their safety and security

What kinds of actions does the Public Guardian NOT undertake in relation to access decisions?

  • Seek information from the treating practitioner about whether the person under guardianship can provide his/her own consent to the proposed treatment
  • Provide/withhold consent to health care treatments, alteration of treatments, the reduction or withdrawal of treatments, and interventions and therapies
  • Provide/withhold consent to treatment which overrides the objections of the person (where the Public Guardian is so empowered to do)

These actions are the responsibility of the persons service coordinator or primary support agency/service, in conjunction with appropriate health care workers /other services.

Health Care Decisions

The Public Guardian may take the following actions or decisions in relation to health care matters:

  • Seek information from the treating practitioner about whether the person under guardianship can provide his/her own consent to the proposed treatment
  • Provide/withhold consent to health care treatments, alteration of treatments, the reduction or withdrawal of treatments, and interventions and therapies
  • Provide/withhold consent to treatment which overrides the objections of the person (where the Public Guardian is so empowered to do)

Despite the Public Guardian having an authority to override a persons objections to treatment, in some circumstances it is not possible to ensure that particular medications are taken, or a procedure undertaken, by a person. For instance, a person may avoid taking medication, or perhaps on account of an itinerant lifestyle may avoid compliance with treatment. A guardians decision-making cannot guarantee that treatment will occur.

  • Seek, from the treating practitioner, all necessary information required by any guardian or person responsible when asked to provide a substituted medical consent, including risks and benefits of the proposed treatment and alternative treatments, why the proposed treatment is favoured, the likely consequences of non-treatment, the exact nature of the condition to be treated, the views of the person and significant others, other treatments the person is receiving, etc.
  • Stipulate a time-limit for consents, and place conditions upon these consents
  • Request a second medical opinion as part of the process for determining whether to provide consent
  • Advise medical practitioners and other allied health staff of their responsibilities in relation to seeking substitute consent from the appointed guardian
  • Attend a consultation between a patient and their treating doctor to gain more information regarding the treatment and views of each party
  • Make decisions about dietary matters (following recommendations by a dietician) where this impacts upon a persons health
  • Request health care and/or medical information relating to a person under guardianship
  • Request a treatment plan, where a person is admitted to a health care facility or when major health concerns have been raised or diagnosed

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