Page 704 - Week 03 - Thursday, 22 March 1990
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It is worth describing the concepts of guardianship and management of property. Management of property refers to a situation in which a person is incapacitated in such a way that he or she cannot legally enter into transactions. Guardianship relates to a person's incapacity to make day-to-day decisions about his or her life, apart from management of property. Guardianship can be given to differing extents. For example, a plenary guardian under the existing law has the same powers as a parent has over a child. It is, however, possible to appoint a guardian with limited powers. This might involve making a decision about performance of a particular medical procedure.
I was very fortunate to be able to discuss this subject briefly with the President of the Law Reform Commission, Justice Elizabeth Evatt, last year. It is no surprise to me that the report that we have before us exhibits the careful consideration, wisdom and humanity which are the judge's hallmarks. The report tackles very effectively the question of potential conflict between the principle of providing protection for people who are unable to look after themselves and the sometimes opposing interest in enhancing the personal autonomy of those people.
The report and the draft Bill are based upon five principles: firstly, that a person should be presumed to be legally competent unless shown to be otherwise; secondly, that, if a decision is made to appoint a guardian or a manager, the powers of the appointed person should be limited to performing the function or functions which the person with a disability is incapable of performing; thirdly, that individual autonomy is enhanced if the disabled person is allowed and encouraged to look after himself or herself; fourthly, that the disabled person should be encouraged to live in the general community and participate in activities enjoyed by the community; and, fifthly, that a person appointed as a manager or guardian should make decisions, as far as possible, as they would have been made by the disabled person. In other words, the individual's preferences should be recognised. I wholeheartedly endorse these principles as a basis for the law in this area.
It is also worth mentioning that the report recommends the establishment of a public advocate who would act as a guardian of last resort, if no other individual is ready, able or willing to act as a guardian. The public advocate would also have a community education role in relation to family and community responsibility for guardianship. This is a useful idea, and I will certainly be watching very closely the current Attorney-General to see what he does about that proposal.
I look forward to seeing the results of community consultation on this report, particularly on the draft Bill which, as is usual with the Law Reform Commission's thorough practice, has been provided ready for implementation. The Bill has been drafted in plain English
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