Jumping into pop-culture news for this article from F&G, let’s follow the most recent legal battles relating to conservatorships in America, and how that translates to guardianship laws in NSW.
Britney Spears' Conservatorship
Public knowledge about conservatorships boosted exponentially following the debacle that was Britney Spears’ 13-year conservatorship, which was terminated after nearly 14 years by a Los Angeles court ruling in November 2021. Spears’ case revealed the extreme lengths to which an individual living under a conservatorship or a guardianship order, can be governed – including her being unable to remove a contraceptive device so she could fall pregnant.
ABC News notes that 1.3 million Americans live under strict conservatorships. Australia does not have conservatorships as they exist in the United States. Instead, each state and territory harbour various guardianship and financial management laws which mimic the function of a conservatorship. A report by the Australian Guardianship and Administration Council notes that there are a total of 19,879 guardianship and administration/financial management orders active between 1 July 2021 and 30 June 2022.
The NSW Equivalent of an American Conservatorship
In NSW, guardianship orders can be sought for individuals seeking to appoint another person with the ability to make decisions about their health, accommodation, services and other lifestyle matters. Similar to the conditions of Britney Spears’ conservatorship, individuals subject to a guardianship order are not able to consent themselves to medical and dental treatment. There are limitations on who can be the subject of a guardianship order. Unfortunately, these limitations still raise significant concerns about the impact of substituted-decision making where supported-decision making can be more beneficial for some individuals under guardianship orders.
The NSW Civil and Administrative Tribunal (NCAT) is responsible for reviewing guardianship applications and making orders. The NCAT will only grant a guardianship order, where the following requirements are satisfied:
- The person being subject to the order has a decision-making disability and is over the age of 16;
- The consequence of the disability is such that the person is partially or wholly incapable of managing themselves; and,
- There is a need for the person to have a guardian appointed.
The Intended Purpose of a Guardianship Order vs the Practical Effect
As these requirements highlight, guardianship orders are intended to serve as ‘support’ mechanisms for those with a disability – this may be a mental health condition, an intellectual disability, or a disability affecting someone’s ability to communicate their decisions. The Guardianship Act 1987 (NSW) states that the welfare and interests of persons with disabilities should be given paramount consideration and that their freedom should be restricted as little as possible.
In practice, however, there are minimal checks and balances on how a guardian undertakes their role to substitute an individual’s capacity and consent with their own – which is discussed by the Intellectual Disability Rights Service in this report. Australia has also been subject to criticisms by the United Nations. Despite being a signatory to the Convention on the Rights of Persons with Disabilities (CRPD), the UN finds that Australia has failed to adhere to the values and principles of the CRPD, by continuing to implement substituted decision-making regimes that enshrine restrictive practices.
If you or someone you know wish to discuss this issue further, please do not hesitate to contact our offices on (02) 8917 8700.