The Law and You: Disability and Guardianship


Lynne: Welcome to the Law and You
interview series for Law Week 2020. Great to have you with us
and wherever you are watching or listening to this, may I take
this opportunity to pay my respects to the traditional
custodians of land on wherever you might be watching and
certainly for the land on which we are talking to you this
morning or today. So, let me introduce you to today’s guest
because we want to talk about disability and guardianship which
are two issues that that may not be front and centre during the
time of lockdowns and pandemics, but certainly when it comes to
people’s understanding of how they plan for their futures, this
can be often a, you know, important trigger for people to
make decisions about mapping their aspirations for what
happens to them and their belongings should the worst
occur. So let me introduce you to Claire McNamara, who is the legal
officer with the Office of the Public Advocate in Victoria. Good
morning, Claire, thank you so much for your time. Claire McNamara: Thank you,
Lynne, thank you for the opportunity to spread the OPA
message. Lynne: Well tell us just a little
bit about what OPA does. Claire McNamara: Yes just so
people are clear OPA is the Office of the Public Advocate,
but we call ourselves OPA. We do a variety of things essentially
about individual and systemic advocacy for people with
disability. Ordinarily, people with cognitive disability and
probably we’re best known for the work we do as guardians. They can
appoint the Public Advocate to be guardian if there’s nobody else
suitable to take on that role. And we have another role at VCAT
which is where, if there’s applications before the tribunal
they might ask us to investigate and provide further information.
So VCAT’s the Victorian Civil and Administrative Tribunal, but we
call it VCAT. So we do lots of other things, some of the topics
that I’ve had a particular interest in over the year are
around elder abuse and trying to prevent misuse of financial
powers of attorney and trying to prevent needless, unlawful
restraint against people with disability, particularly elderly
people in aged care facilities. So we do we do lots of things.
And if you’re interested in the organisation, there’s always
opportunities for volunteering. We have about 700 volunteers who
visit facilities to keep an eye on people who live in residential
facilities such as mental health units and disability support
accomodation. Lynne: Well that’s a fantastic
opportunity, I think for people to get more involved because as
you say, it’s really critical and really diverse and interesting
work as well. But there are a couple of things you mentioned
there, Claire around disability and also about elder abuse and
mismanagement of people’s financial condition with a view
as opposed to personal gain at the end and all these sorts of
issues around, you know, thinking about wills. I know, for example,
that wills as a search term on Google went through the roof when
the pandemic first sort of became, you know, high profile.
So we are thinking about those sorts of issues and you’re
dealing with the, I suppose, the worst of that behaviour. But what
what can people do in order to make sure that they are in the
best possible position to respond, if, for example, their
partner or their family member or they themselves want to make
plans for their future? Claire McNamara: Okay, well just
firstly, I should emphasise that our office doesn’t give any
advice about wills. We know that people of course are concerned
about wills and they put it in the same package as other matters
that our office deals with, which is really more about future
planning, and making powers of attorney or appointing someone to
make medical treatment decisions for you. If you didn’t have the
capacity to do that for yourselves or Advance Care
directives. So that’s really more the area that our office has
expertise in. So there’s always a delicate balance between on the
one hand, we certainly, OPA have always encouraged people to do
future planning. It’s good for any of us, of any age, at any
stage of our life in any circumstances, social lockdown,
or otherwise, to be thinking about what would happen if I
wasn’t in a position to make decisions for myself in the
future. And so, we certainly want to promote that. But on the other
hand, we also want to protect people. And there certainly is
plenty of research, which indicates that powers of attorney
can become instruments of elder abuse. What OPA wants to do is to
try to ensure the safeguards in place so that people use those
planning documents to promote their autonomy, not that they’re
used by other people for financial abuse and certainly
Like the most common type of abuse against older people, is
financial abuse. Lynne: So Claire, how do you
ensure that because, you know, it is you say important to empower
the individual to make that decision for themselves. But how
do you ensure that down the track that isn’t open to some kind of
pressure or abuse? Claire McNamara: I think the
approach of our office has changed recently, we’ve put out a
publication called Take Control since 1993. I’m not sure it might
be up to about it’s fifteenth edition or so. The most recent
edition we’ve taken a different approach, we don’t have the forms
in Take Control. Now in the past, people have said they want the
forms in that document. And by the forms, I mean, the powers of
attorney, the documents you’d fill out, and we changed that. We
thought to change this approach for some time and we have done so
recently, because we felt it was a little bit about putting the
cart before the horse. What we want to do is encourage people to
think and to plan. After the thinking and the planning, then
there can be the doing. So people want to make powers of attorney,
that’s an option. It’s also an option not to do it. So for
instance, whilst I’m a person who knows a lot about the
legislation, and I’ve done many training sessions about advanced
care planning, I personally haven’t made an advanced care
directive. Should I? It’s a personal choice. The choice
somebody else will like is a different one. Do I need to do it
at this point in my life, in my circumstances? Maybe not. Or
maybe I’ve just not got around to it, but they’re my points of
responsibility for myself. So I think what we’re trying to do
with our publications approach is to slow things down. Because what
we really want people to do is to be informed. I think maybe people
have a sense of if I’ve completed the document and it looks
official, I’ve done something, but maybe you’ve done nothing
that’s really good to help you in the future. And maybe you’ve done
Something that will be unhelpful in the future. So the first thing
is to make sure you’re well informed about your options. You
read some information, you talk to your friends, you find out
what worked for people, what didn’t work for people, and you
reflect upon what’s important for you. And that, I have to say is
easier said than done. Have a conversation with your family
over dinner, through a Zoom dinner, just ask people, what
would you want to happen if… imagine a scenario if you were
diagnosed with Alzheimer’s, if you were in a catastrophic car
accident, if you needed to be on a ventilator. Have these
hypothetical conversations when they’re safe to have because in
fact, you’ve not just been diagnosed with Alzheimer’s,
you’ve not just been in a catastrophic car accident. Now is
a safe time to have those conversations. So if something
did happen, people would know what you want. If I was to
appoint, for instance, my sister to be my medical treatment
decision maker and she says, “Thanks, Claire, I always knew
you favoured me over everybody else in the family. What an
honour.” Maybe she feels the honour. But how helpful is it to
me if she gets a call at two in the morning to come into hospital
and make some difficult decisions. She’s going to look
around at my siblings. And say “We never spoke about this.” So
it’s not the completion of the document that’s important. It’s a
conversation. Lynne: Claire, I think you’ve
given us such a vital summary of that dual role, you have to both
promote these issues and to plant them in people’s minds so that we
can think through, you know, what it is we want and what it is we
value and, you know, for many people, that’s a difficult
conversation. It’s not your normal kind of dinner time chat.
But it is critical, and I think it is in people’s minds,
particularly at the moment, but also, as you’ve said, you know,
the really vital role that OPA plays in protecting, you know,
the most vulnerable through whatever mechanism, whether it’s
the Guardianship and Administration Act or other roles
that you play and through your volunteers, but it’s, I think,
really timely for us to consider what future planning looks like
and what kinds of issues we might need to discuss. And we thank you
very much indeed for your time today. Claire McNamara: Thank you.

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