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Australia ratified the United Nations Convention of Rights of Disabled People in 2008 (UNCRDP). In so doing it agreed to abide by the Principles and Guidelines contained therein which were designed to protect the basic human rights of marginalised. vulnerable and disabled persons. As there are no procedural safeguards for these people, The Guardianship Tribunal, Public Guardian and Public Trustee have failed to embrace the application of international human rights law. They do so with total impunity because of the far reaching powers granted to them by the State which also allows them to operate with no real accountability or transparency. By almost automatically adopting the “default position” of plenary guardianship, the Tribunal’s Guardianship Order becomes a “civil death” of the persons who come before it. These persons are stripped of their legal capacity in all matters relating to their finance and property but are also deprived of many other fundamental rights, including the right to vote, the right to consent or refuse medical treatment, freedom of association and freedom to chose where they live and with whom. Guardianship-in-law, in practice and guardianship in-law, in theory is totally discordant. Theory loses out to practice which in essence arbitrarily deprives the person under guardianship of almost every fundamental human right with devastating results. Once in its clutches, there is rarely any way out. Guardianship is a legal mechanism in which human rights abuses can be all pervasive. Decisions made “in the best interests” of the protected person are made by faceless public servants who, generally, have never met the protected person, knows or understands his/her cultural diversity, wishes or beliefs. Families/carers are treated as a irritant and given no respect and the protected person has no effective means of complaint as every govt. and semi-govt. organisation will not find against them despite copious amounts of evidence of wrong doing and human rights abuses. The facts are that the Tribunal and Public Guardian rely on increasing head counts to justify their existence and obtain govt. funding. The Public Trustee, as the commercial arm of the Govt., relies on exorbitant fees & charges levied against the protected persons’ estates to secure its on- going employment and empire building. Despite all the spin and propaganda advancing the image of guardianship as being the “angel on my shoulder”, nothing could be further from the truth. Exorbitant fees, mismanagement, incompetence, apathy and sometimes fraud only hastens the depletion of the protected person’s estate funds leading to their inevitable but involuntary removal from their own homes and into nursing institutions. The family home is then sold and the Public Trustee takes a 20% commission on the sale. After that, they are not worth much to the Public Trustee and so the search for further head counts continue via their clearing house known as The Guardianship Tribunal. The Public Trustee advertises many services. For example, preparation of Wills are offered free as an incentive to private clients as long as the Public Trustee is appointed Administrator of the Estate. However, little transparency as to fees is offered until it is too late – i.e. the person is dead! Comparison Chart Value of Asset. Solicitor Fee PT fee $2000,000 $1,510.30 $4,400 $500,000 $2,083.00 $7,700 $750,000 $4,787.20 $14,850 $1million $6,017.00 $17,600 $2milion $7,843.00 $28,600 $5million $12,100.00 $61,600 $10million $17,055.00 $116,600 How can a Govt. department which purports to provide the best oversight, accountability and transparency display any ethics or integrity when it gouges the estates with such extortionate fees? They do it because they can and because they rely on the falsehood of advertising and the naivety of the uninformed. Public Guardians are public servants who are ill trained, ill informed as to the needs of people with disabilities, uninterested in the wishes of the protected person and have no understanding of the term “in the best interest”. An elderly cognitively impaired person (no matter what level) is viewed as a non person, having no value in society. Removal from the home into an institution is not an “if” but a “when”. Such accommodation decisions are not made as a last resort but rather as a first port. To remain living in their own home with excellent 24hr. care from loving family etc. is not an option. That way the public servant does not have to deal with the genuine concerns raised by the family/carer regarding the protected person. Institutionalisation allows the Public Guardian the opportunity to then abrogate its responsibility of the protected person’s care to the nursing institution and ultimately retain as little involvement as possible. Families/carers are then left with the legacy of despair seeing their loved one lose the will to live whilst living in such circumstances and their powerlessness in preventing the destruction of the family unit. The Australian government was responsible for the stolen generation of aboriginal children, it was responsible for the plight of young orphaned children transported into institutions and treated cruelly treated, it also ignored the paedophilia in the Catholic Church and here we are in 2014 with the Govt. yet again, burying its head in the sand, only this time it is the elderly, the vulnerable and the marginalised who are suffering the same fate and human rights abuses at the hands of the Guardianship Tribunal, Public Trustee and Public Guardian. It is well past time for law reforms to be ignored. Legislation must urgently be passed to legally enforce the basic human rights of its most vulnerable citizens and stop guardianship abuses and the systemic denial of their basic human rights. Plenary guardianship and substituted decision making must only ocur in genuine cases of absolute last resort. Guardianship laws must be reshaped to ensure that the default position of full guardianship orders for almost everyone who comes before the Tribunal does not prevail. The evidence is there, the abuses are real and this draconian method of guardianship must stop now. Thirty years of Inquiries, Submissions, Reports et al have come to nought. Every Australian must demand that legislated law reforms occur immediately to protect the fundamental human rights of our elderly, vulnerable, disabled and marginalised citizens. Even prior to the ratification of the UNCRPD “guardianship-as-usual” violated international human rights by it “all or nothing” test. IT IS TIME that the oppressive systemic behaviour and attitudes of the Guardianship Tribunal, Public Guardian and Public Trustee are exposed in the public interest and new laws are legislated to legally ensure the full and equal enjoyment of all human rights and fundamental freedoms of all persons with disabilities.
MY COMMENT: Hear hear…well said. Now let’s see something properly done about this mess soon!