Chapter 3Guardianship and financial administration
3.1Choice and control for participants is a key pillar of the National Disability Insurance Scheme (NDIS). This is reflected in the Scheme's governing legislation. One of the objects of the National Disability Insurance Scheme Act2013 (NDIS Act), which governs the operations of the National Disability Insurance Agency (NDIA or the agency), is to 'enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports'. This is also consistent with Australia's international obligations under the Convention on the Rights of Persons with Disabilities (CRPD).
3.2However, evidence to the committee indicated that a growing number of NDIS participants are subject to public trustee and guardianship arrangements, which can directly impact the level of choice and control that participants are able to exercise in relation to their living circumstances, their treatment, and their finances. Evidence suggested that public guardianship arrangements may have been sought by service providers in some instances. Some service providers are believed to have sought these arrangements primarily for their own administrative convenience or financial gain.
3.3As Dr Colleen Pearce, the Victorian Public Advocate, observed at a public hearing:
The NDIS was designed to promote choice and control for people with disability, so it's quite difficult to comprehend how a scheme premised on participant control has resulted in nationwide growth of the use of adult guardianship – in other words, human rights limitations are placed on large numbers of participants so they can access a system designed to promote choice and control.
What is guardianship and financial administration?
3.4When people have a disability that affects their decision-making capacity such as intellectual or cognitive disability, brain injury, or mental illness, another person can be appointed to make decisions on their behalf.
3.5Guardians may make decisions on such matters as healthcare, lifestyle, including accommodation and living arrangements, and medical decisions, including providing or withholding consent to medical and dental treatment.
3.6Guardians are often a family member or friend of the person. Where no-one else is available, a public guardian can be appointed to make decisions on a person's behalf. These guardians are called public advocates in Victoria, South Australia and Western Australia, public guardians in the Australian Capital Territory (ACT), New South Wales (NSW), Tasmania and the Northern Territory, and public guardian or adult guardian in Queensland.
3.7Similarly, if a person's decision-making ability is impaired due to disability, age, mental illness or injury, another person, private trustee company or public trustee may be appointed as a financial manager by a court or tribunal to make financial decisions on their behalf under a financial management order. A financial administrator is responsible for looking after all of that person's financial affairs, including cash, shares, real estate, superannuation, business interests, motor vehicles and debts.
3.8Guardians and trustees have generally followed a 'best interest' model, where they take on the entire decision-making function for a person, making decisions according to what they believe is in the best interest of the person they're representing. This model generally determines that the person being represented has no decision-making capacity, and thereby transfers their decision‑making rights and powers to another person or entity. It does not require the guardian or trustee to consult the person they are representing. This model is also known as 'substitute decision-making'.
3.9Recent reforms have led some guardians and trustees to move towards a 'will and preference model', where the decision-maker is bound to implement the wishes and preferences of the person being represented, where they are known or can be reasonably understood. This model is also described as 'supported decision-making'.
3.10Article 12 of the CRPD recognises the right to support for decision making, including 'the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices' and 'that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them'.
3.11The Disability Royal Commission recommended that supported decision‑making be embedded in guardianship and administration law and practice, and other systems over time, to ensure substitute decision-making only happens as a last resort and in the least restrictive manner possible.
Who can make applications for guardianship or financial administration?
3.12In each jurisdiction, the decision to put guardianship and/or trustee orders in place is made by the relevant civil and administrative tribunal. There are generally few restrictions on who may make an application for guardianship or financial administration orders.
3.13In the ACT, anyone who is concerned that someone that they know, living in the ACT, has impaired decision-making ability can apply to the ACT Civil and Administrative Tribunal (ACAT) to appoint a guardian or manager for that person.
3.14In NSW, anyone with a genuine concern for the welfare of the person they consider incapable of making their own decisions may apply to the NSW Civil and Administrative Tribunal (NCAT). Anyone with a genuine concern may also apply to NCAT to appoint a financial manager to make financial and legal decisions on behalf of a person with a decision-making disability.
3.15In the Northern Territory, anyone aged 18 or over can apply to the Northern Territory Civil and Administrative Tribunal (NTCAT) for a guardianship order for an adult family member, friend or client who has impaired decision-making capacity and has difficulty making personal or financial decisions. An adult who is worried about their own capacity to make decisions in some areas, and thinks they need a guardian, can also make an application for themselves.
3.16In Queensland, any interested person may apply to the Queensland Civil and Administrative Tribunal (QCAT) for the appointment of a guardian or administrator for an adult with impaired capacity for a matter. This includes family members, close friends, professionals, or anyone with a sufficient and genuine concern for the rights and interests of the adult. Adults with impaired capacity to make a decision can also apply on their own behalf.
3.17In South Australia, applications to the South Australian Civil and Administrative Tribunal (SACAT) for guardianship orders can be made by:
the person who the application is about;
the Public Advocate;
a substitute decision maker for the person under an advance care directive;
an administrator of the person's estate including the Public Trustee;
a 'person responsible' for the person as defined in the Guardianship and Administration Act 1993 (SA); or
any person who can satisfy SACAT that they have a proper interest in the welfare of the person who the application is about.
3.18In Tasmania, anyone who has a genuine concern for the welfare of a person with a decision-making disability can make an application to the Tasmanian Civil and Administrative Tribunal (TASCAT) for a guardianship or administration order.
3.19In Victoria, any adult can make an application to the Victorian Civil and Administrative Tribunal (VCAT) Guardianship List for a guardianship or administration order if they are concerned that:
a person with disability is not able to make a decision that needs to be made
there is no other less restrictive way the decision can be made.
3.20In Western Australia, anyone can apply to the State Administrative Tribunal (SAT) and ask for a guardian and/or administrator to be appointed for someone else.
Statistical information on guardianship orders
ACT Public Trustee and Guardian
3.21In 2021–22, 216 people were under guardianship orders.[20] This compares to 235 in 2020–21.[21] The percentage who were NDIS participants was not stated.
NSW Trustee and Guardian
3.22At 30 June 2022, 4,006 of 12,550 (32 per cent) of people under financial management were NDIS participants. 1,907 of 3,533 (54 per cent) of people under guardianship were NDIS participants.[22]
3.23At 30 June 2021, 52 per cent of the 12,494 people under financial management were NDIS participants.[23] Of the 3,336 people represented by the Public Guardian, 44 per cent were eligible to participate in the NDIS.
Northern Territory Public Guardian and Trustee
3.24In 2021–22, 406 eligible represented persons with Public Guardian involvement (95 per cent) were NDIS participants.[24]
3.25In 2020–21, 390 eligible represented persons with Public Guardian involvement (94 per cent) were NDIS participants.[25]
Queensland Office of the Public Guardian
3.26In 2021–22, two thirds of the 2,034 adults with guardianship order were NDIS participants.[26]
3.27In 2020–21, 2,356 guardianship clients were registered as NDIS participants. Of the 594 new orders appointing the public guardian in 2020–21, 296 were NDIS‑related decisions, representing 50 per cent of all new appointments to the public guardian.[27]
South Australian Office of the Public Advocate
3.28In 2021–22, 1,070 of 1,675 (63 per cent) of people under guardianship orders were NDIS participants.[28]
3.29In 2020–21, 942 clients (61 per cent) had an approved plan, comprising 872clients under 65 years and 70 clients over 65 years.[29]
Tasmanian Office of the Public Guardian
3.30At 30 June 2022, approximately 175 of 305 (59 per cent) of people under guardianship orders were NDIS participants.[30] This represented a decrease since the previous year.
3.31At 30 June 2021 the total number of NDIS participants under the guardianship of the Public Guardian was 200, an increase from 177 at 30 June 2020 and 132 at 30June2019.[31]
Victorian Office of the Public Advocate
3.32 In 2021–22, 72 per cent of the 1,976 people under guardianship orders were NDIS participants.[32]
3.33In 2020–21, 82 per cent of the 1,941 people under guardianship orders were NDIS participants.[33]
Western Australian Office of the Public Advocate
3.34At 30 June 2022, 2,050 or 66 per cent of the 3,115 adults under guardianship orders were NDIS participants. Of the 3,115 adults 1,973 were 65 years or younger, and of these adults, 94 per cent had NDIS involvement.[34]
3.35At 30 June 2021, 1,699 or 61 per cent of the 2,771 adults for whom the Public Advocate was appointed guardian had NDIS involvement. Of the 2,771 adults, 1,735 were 65 years or younger, and of these adults, 93 per cent had NDIS involvement.[35]
Best practice guidelines
3.36The Australian Guardianship and Administration Council (AGAC), which represents Public Guardians, Public Advocates, Public Trustees, and Civil and Administrative Tribunals, published guidelines in 2019 for Australian tribunals to facilitate and maximise the participation of the person in guardianship proceedings. The guidelines recognise that persons who are to be subject to guardianship orders should receive appropriate support at all stages of proceedings, to maximise their ability to understand and participate.
3.37Subsequent audits and reviews of public guardians, public advocates and public trustees in many jurisdictions, as discussed below, indicate that the 2019 guidelines are yet to be fully implemented. This has significant ramifications for the choice and control that NDIS participants who are under guardianship or trustee orders are able to exercise.
Audits and reviews of public guardians and trustees
3.38The performance of public guardians, public advocates and public trustees is frequently the subject of audits and reviews by other state and territory bodies.
Australian Capital Territory
3.39 The ACT Audit Office assessed the effectiveness of the Public Trustee and Guardian's (PTG) delivery and oversight of financial management services to protected persons, as part of its 2022–23 work program,[37] tabling its report in the ACT Parliament on 29 June 2023.[38] The report found that that the processes used by the PTG to deliver financial management services to protected persons and examine accounts submitted by private managers have been poor. Shortcomings were identified across a range of governance, administrative and service delivery arrangements. The Auditor-General noted that, for the PTG to deliver its supported decision-making approach, it is critical that protected persons, or their support persons, are consulted on their financial position, as well as their wishes. The audit found this consultation was not routinely undertaken, undermining the efforts of the PTG to provide supported decision‑making.
New South Wales
3.40 The Audit Office of NSW recently conducted an audit into whether the NSW Trustee and Guardian effectively provides financial management and guardianship services in line with legislative requirements and National Standards. These services include a legislative duty to observe certain principles including to give primary consideration to these clients' welfare and interests, restrict their freedom of decision and action as little as possible, take account of their views, encourage their self-reliance and protect them from neglect, abuse and exploitation. The Audit Office published its report in May 2023.[39]
3.41The audit found that, while the NSW Trustee and Guardian is delivering guardianship and financial management services in line with its legal authority, it does not have sufficient oversight to ensure that its services are consistent with legislative principles which aim to promote positive client outcomes.
3.42Governance and practice for financial management and guardianship were found not to reflect the nature and diversity of the client base. Staff understanding of, and training in relation to, traumatic brain injury, dementia, intellectual disability and mental illness was found to be insufficient. The audit noted the absence of a consumer advisory entity to provide advice on financial management and guardianship services from the perspective of clients with lived experience. The report also observed that, despite a significant over‑representation amongst its client group, NSW Trustee and Guardian does not have specific governance, consultation, staff roles or practice guidance for its engagement with Aboriginal and Torres Strait Islander clients and their representatives.
3.43The audit noted that the NSW Trustee and Guardian did not have effective monitoring in place to know the actual costs of service delivery. Government funding for guardianship services and direct financial management services for low-wealth clients was assessed as not having kept pace with the growth in clients. The report noted that there is a risk that some fee-paying clients are unknowingly subsidising others.
3.44In its response to the six recommendations of the audit report, the NSW Trustee and Guardian accepted one in total and five in principle, providing a timeline of agreed actions in response to each recommendation.
Northern Territory
3.45No recent audits of the Northern Territory Public Guardian and Trustee were found at the time of writing.
Queensland
3.46The Queensland Public Trustee was scrutinised in the Queensland Public Advocate's report Preserving the financial futures of vulnerable Queenslanders in January 2021.[41] Evidence to the Public Advocate raised serious issues about the level and complexity of the Public Trustee's system of fees and charges, its lack of transparency, the Public Trustee earning revenue from clients' funds and its use of external professional advice to justify investments in its own products. The report made 32 recommendations relating to the Public Trustee's fees and charges, financial management, client services, legal services and administration.
3.47Recommendation 30 called on the Queensland Government to 'consider whether the Public Trustee and its clients would benefit from additional oversight and/or reporting mechanisms to improve the Public Trustee's performance, transparency and public accountability'.[42] The government response accepted this recommendation and stated the government was 'committed to the establishment of a Public Trustee Board, that will have an advisory and monitoring function'.[43] The Public Trustee (Advisory and Monitoring Board) Amendment Act 2022 (Qld) passed the Queensland Parliament in May2022, allowing for the establishment of a new oversight board.[44] Queensland Attorney-General and Minister for Justice the Hon Shannon Fentiman MP said that the new Board would monitor the performance of the Public Trustee's functions, providing advice to both the Public Trustee and to the Minister.[45]
South Australia
3.48An evaluation of the Public Trustee by the Independent Commission Against Corruption was tabled on 26 September 2017, making 19 recommendations intended to provide practical ways to advance comprehensive and effective systems for preventing or minimising corruption, misconduct and maladministration in public administration.[46] The Public Trustee agreed with all recommendations, while calling for significant capital funding for new systems and ongoing funding to modernise the business while ensuring service delivery levels were maintained.[47]
Tasmania
3.49In December 2018, the Tasmania Law Reform Institute submitted the final report of its Review of the Guardianship and Administration Act 1995 (Tas). The report recommended a major overhaul of Tasmania's guardianship laws to reflect a contemporary, rights-based approach to decision-making. Other key recommendations included: changing the 'best interests' test to one where decisions about a person's life are based on their views, wishes, preferences and rights; a supported decision-making framework, with traditional guardianship and administration as a last resort; clarifying the legal status of advanced care directives; and reforms to prevent, better detect, and respond to abuse and neglect of people with a need for decision-making support.
3.50A review of the Public Trustee commenced on 30 June 2021, conducted by MrDamian Bugg AM KC, in response to concerns raised in the media and with the Tasmanian Government about the operations of the Public Trustee. The final report released on 1 December 2021. The government response supported, or supported in principle, all 28 recommendations of the review, and identified the following key elements for improvement:
progressing a clear cultural and policy shift of the Public Trustee towards a human rights and supported decision-making approach, to be embedded in the Guardianship and Administration legislative framework through the next tranche of significant legislative reforms;
funding arrangements that support the implementation of the Bugg Review recommendations;
increasing and strengthening oversight of the Public Trustee, through a revised and updated Ministerial Charter that clarifies the Government's policy expectations and service delivery requirements for the Public Trustee; and
supporting the Public Trustee in the significant work underway to progress improvements to its internal operational and administrative practices, reflecting the clear shift in focus to an improved and revised client and customer-centric service delivery model.
Victoria
3.51 In Victoria, State Trustees has been the subject of reports by the Victorian Ombudsman in 2003 and more recently in 2019. The 2019 investigation found that State Trustees too often failed to act in the best interests of its clients, who were by definition among the state's most vulnerable, and made 14recommendations. Areas for improvement included client communication, support for client independence and improved stakeholder engagement.[51]
Western Australia
3.52 On 10 August 2022, the WA Auditor-General tabled a report on the Public Trustee's Administration of Trusts and Deceased Estates. The audit found that although fees were charged in accordance with the gazetted fee schedule, some trust clients were charged large fees for relatively little work performed on their behalf. The Auditor-General said that the Public Trustee's 'self-funding' model had an inherent incentive to maximise fees from clients with the capacity to pay. It was also noted that, while other entities delivering essential services on a fee‑for‑service basis were subject to close scrutiny of their service standards and performance and had an independent governing board, the Public Trustee was not subject to that kind of scrutiny or oversight.[52]
Restrictions on choice and control
3.53Evidence to the committee identified the imposition of trustee and guardianship orders as a significant restriction on NDIS participants' ability to exercise choice and control.
3.54For example, the Northern Territory Public Guardian and Trustee (PGT) is responsible for personal and lifestyle decision-making for approximately 670adults under guardianship orders, 77 per cent of whom identify as Aboriginal and Torres Strait Islander, across all regions of the Northern Territory. Approximately 95 per cent of these people are current NDIS participants. The PGT has attended nearly all initial and review planning meetings for these participants.[53]
3.55The PGT observed a growing trend for persons with impaired decision-making capacity to have a formal guardian appointed to enable them to navigate the scheme. It characterised this trend as being in conflict with a scheme in which independence, choice and control and the participant's human rights are central objectives.[54]
3.56In a submission to the committee in March 2021, Queensland Advocacy Incorporated noted that there had been a rising number of applications for guardianship and administration appointments to QCAT. It argued that many of these applications were 'unsubstantiated and some are occurring in situations where the provider has a conflict of interest and seeks financial gain from a participant's NDIS funding'.
3.57Advocacy for Disability Access and Inclusion SA (ADAI) provided a case study of Mary, an NDIS participant. Mary had been under the guardianship of the Department of Child Protection (DCP) since early childhood. As Mary approached adulthood, the DCP recommended putting a new, ongoing, guardianship order in place. Mary refused, asserting that she wanted to be responsible for making her own choices in life. ADAI also submitted that the NDIA had suggested that a guardian should be appointed for Mary, despite her refusal, to provide consent to her NDIS plan.
3.58The Office of the Public Advocate Victoria (OPA) submitted that, in 2020–21, it was involved in 1,941 guardianship matters (964 of which were new), 425investigations, and 352 cases requiring advocacy.
3.59In their 2021–22 annual report, the OPA made extensive commentary about the nexus between guardianship arrangements and the NDIS. The OPA noted that, since the advent of the NDIS, the largest group of people under guardianship has changed from older people with dementia, to people with an intellectual disability, followed by people with mental health issues. The OPA added that the advent of choice and control has not been accompanied by sufficient adjustments or support for decision-making, resulting in an over-reliance on the guardianship system.
3.60In a February 2021 report titled Decision Time: Activating the rights of adults with cognitive disability, the OPA stated its concern that:
… marketisation of a social care sector increases the likelihood that the care providers will want to transfer risk and reduce uncertainty by seeking contractual relationships with decision-makers who have legal capacity. Throughout Australia there has been an increase in guardianship appointments in order to enable NDIS-related decision-making to occur: it is OPA's view that removing people's decision-making rights so as to fulfil administrative goals is a backward human rights step.
3.61Mr Mark Toomey discussed his experience of seeking appropriate supports for his son, who had acquired a traumatic brain injury. Mr Toomey gave evidence that hospital executives had applied to VCAT to have his son placed under a public guardianship order, rather than continue to deal with Mr Toomey as his son's guardian. He raised concerns that, because of his persistent advocacy as his son's carer, they had deemed him uncooperative and sought to remove him from control of his son's future care.
NDIS plan nominees
3.62Even where a formal guardianship order is not in place, it is possible for persons other than the participant to make decisions in relation to an NDIS plan as a participant's nominee. Nominees can be appointed in writing, at the request of a participant, or on the initiative of the NDIA, to act on behalf of, or make decisions on behalf of, a participant for the purposes of the NDIS Act.
3.63The NDIA stipulates that appointment of a plan nominee is a measure of last resort, and is justified only when it is not possible for participants to be assisted to make decisions for themselves. Furthermore, it is only in rare and exceptional cases that the NDIA will find it necessary to appoint a nominee for a participant who has not requested that an appointment be made. The NDIA also provides a set of operational guidelines for plan nominees.
3.64Queensland Advocacy for Inclusion (QAI) warned the committee that some nominees were not fulfilling their obligations under those guidelines:
Whilst many nominees successfully fulfil this requirement, not all nominees perform their duties in accordance with the Operational Guidelines and QAI has encountered situations where nominees have failed to act in a manner that promotes the personal and social wellbeing of the participant, and have exerted control over the participant to make decisions in accordance with their own interests.
3.65QAI also noted that, despite nominees having comparable powers to a guardian regarding a participant's NDIS plan, there were no formalised regulatory safeguards to minimise the risks of undue influence or exploitation of vulnerable participants by nominees. QAI suggested that the NDIA's proposed 'desktop reviews' of nominee arrangements were unlikely to be sufficient and would fail to address circumstances of undue influence or interception of correspondence by nominees.
3.66QAI also described potential conflicts of interest for the NDIA, noting that the agency could appoint nominees at its own initiative, without the transparency of a tribunal and without a formal independent capacity assessment. QAI observed that the NDIA stood to financially benefit from the appointment or removal of particular nominees, and that there are no compensatory remedies for participants who suffer harm due to a nominee's actions. The lack of safeguards concerning nominee appointments was therefore identified as a human rights issue in need of urgent attention.
3.67A group of disability advocacy organisations submitted that NDIA staff were not adequately resourced to develop adequate rapport and trust with participants. This was observed to result in the agency tending to rely on communicating only with appointed nominees instead of understanding and respecting the participant's wishes and communication preferences, thus weakening participant's choice and control.
3.68The Office of the Public Advocate Victoria recognised that the NDIA has commenced work on the co-design of a Supported Decision Making policy and implementation plan, but that there is no similar legislative provision authorising the use of a decision-supporter in the context of the NDIS:
While nominees can be appointed, significant further work is required to truly realise the rights of people with disability to enjoy legal capacity on an equal basis with the broader community, both in the context of the NDIS as well as in Australian society more generally.
Evidence at public hearings
3.69On 4 August 2023, the committee held a public hearing into public guardianship and financial administration, inviting representatives of public guardians, public advocates, public trustees and civil and administrative tribunals from every state and territory to attend. Most organisations declined to make representatives available for the hearing. The committee is grateful to those organisations that chose to attend the hearing.
3.70At a hearing in Launceston, the Tasmanian Public Trustee gave evidence that the NDIS had been a 'positive and transformative initiative' which had made a significant impact on the lives of people with disability, giving them supports they would not otherwise have had and enable them to make ends meet. The Public Trustee identified two key areas for improvement: a need to improve the sharing of information between the NDIA and the Public Trustee, and better acknowledgement and recognition by the NDIA of the Public Trustee's role as participants' financial administrator.
Supported Residential Services
3.71 Submitters have also attested that choice and control for NDIS participants is significantly impacted when they live in supported living arrangements.
3.72The OPA noted the prevalence of Supported Residential Services (SRS) proprietors setting up NDIS businesses, and expressed grave concerns about the commodification of people with disability whereby they are targeted by unscrupulous providers to access lucrative NDIS funding packages. OPA also noted concerns about providers effectively dipping into NDIS funds that were already included in the SRS fees.[69]
3.73Community Visitors, residents and guardians also reported serious concerns to the OPA, including:
residents feeling intimated and influenced to choose the proprietor's business for their NDIS service provision, enabling full control of the residents living in their facility and reducing the potential for external scrutiny;
residents being denied access to NDIS support workers of their choice if they were not employed by the owner's business;
reports of residents being coerced into staying at SRS when they have been looking for alternative accommodation;
residents being refused access to their NDIS plans; and
residents signing documents for accommodation and services without understanding what they were agreeing to.
3.74At a public hearing, the NDIS Quality and Safeguards Commission gave evidence that it was undertaking an examination of over 1,500 supported disability accommodation (SDA) providers, drawing on its own-motion inquiry. The Commissioner said that they had been looking particularly at the practices of SDA providers that limit choice and control by participants, and were implementing a 'much deeper set of compliance activities' with approximately 175 providers.