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ADVOCACY KNOWLEDGE COMMUNITY
DEVELOPMENTAL DISABILITY (~/A/
Royal Commission Submission
Impacts of Guardianship and Administration powers on People with Intellectual
Disability
Background
Developmental Disability WA (DDWA) has conducted an individual advocacy support service over recent years that has attracted numerous requests for assistance in the State Administrative Tribunal jurisdiction, in respect to Guardianship and/or Administration.
People with intellectual difference/disability can be assumed to lack capacity to make decisions on their own behalf, without opportunities being provided to demonstrate capacity. Applications can be made for the appointment of a Guardian for a person and this requires that a SAT hearing be convened.
Parents who raise issues of concern or come into conflict with service providers can have their Natural Guardianship challenged through an application for a SAT hearing to determine the need for and appointment of a Guardian. We have seen this power used to damaging effect by government and community-based services to exclude a parent and bring in a substitute decision-maker with no knowledge of the person.
The response of a party in the community to concern for a person, of the application for a SAT hearing, is not being declared as wrong. This is a fundamental system in our community for protection of vulnerable people. There will be times when applications for Guardianship orders are ill-considered or malicious, and this is a reality of such a protective framework. What all applications to SAT need is to be compassionately and intelligently considered, based on good evidence.
We are concerned that Guardianship powers can be used unjustly where hearings are conducted in a manner that denies the person at the centre the opportunity to express themselves, use the support of an advocate or time to process and respond to information. The result of an order for Guardianship or Administration can be the feeling of complete loss of autonomy, agency and freedom. People have expressed many times that being under Guardianship or Administration feels like ‘being in chains, in jail, in prison.’
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DDWA has seen Guardians appointed to provide a substitute decision-maker in child safety applications, where the Children’s Court (in WA this is the place where applications are heard) is concerned about a person’s capacity to instruct a lawyer. • it has been a practice to not challenge applications or to follow the parent’s wish that the application is tested. Guardians will allow the application to proceed, without ‘consenting or opposing’, effectively permitting the removal of children.
We seek to have the Royal Commission know that the impacts of Guardianship fall heavily on people with Intellectual disability in WA in a manner that reflects the wider prejudices in the community about the capacity and potential of people with disability. It appears that the awareness of the Human Rights of people with disability is not given due regard in the SAT jurisdiction in respect to the entitlement to good process, support for communication and finding the least restrictive arrangement to ensure safety.
Thank you for considering these comments. We would welcome an opportunity to expand on these, or to bring some of the people we have assisted to you, for you to hear their perspectives in their own words.
Yours sincerely