Page 706 - Week 03 - Thursday, 22 March 1990
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On a practical level, families in the ACT are further disadvantaged. Orders come from the Supreme Court at considerable expense. The filing fee alone is $300, and obtaining an order will cost between $2,000 and $4,000, and then the order is still inadequate. I am told that most families do not apply, simply because of the name of the Act - who can blame them? - and the obvious stigma that follows. Fortunately, commonsense in ACT families has prevailed over what can be described as a totally inadequate law. Since 1927 probably no more than 20 orders have been made under this ancient Act.
This raises an important issue of how many ACT families are affected. As Ms Follett mentioned, the Law Reform Commission estimates that about 80 people a year need management or guardianship orders. This is a conservative estimate, and the number can be expected to increase as our population ages. In addition, the Law Reform Commission also estimates that there is a backlog of possibly 1,500 cases of people who would seek orders if there were a simplified and more effective system in the ACT.
These statistics clearly indicate that many families in the ACT are not supported or assisted by the law in this difficult task of ensuring that family members who are not able to manage their day-to-day affairs have an acceptable quality of life. Since many of the decisions on property or medical treatment have legal implications, this deficiency needs to be addressed as soon as possible.
The report tabled in this Assembly provides one solution for the problem that I have outlined. The report proposes that a specialist tribunal be established to preside over hearings in this area. While making sure that the interests of all parties are heard, a tribunal also offers a more informal and less threatening environment in which families can seek orders. Other advantages over a court are that a tribunal is better suited to periodic reviews of individual cases and the role of providing advice and guidance to guardians and managers.
The tribunal would make orders only when it is satisfied that a person in question either needs to make an important decision as to his or her welfare or health, and lacks the legal capacity to make that decision, or is unable to manage his or her day-to-day life and his or her needs cannot be met except by the appointment of a guardian. The tribunal will look for some form of specific incapacity, such as intellectual impairment, mental illness or brain damage. This is to rule out the possibility of making orders where a person involved is merely incompetent, eccentric or antisocial.
Once an order of a guardian is made, the guardian would have virtually the same control over the incapacitated person as a parent has over his or her child, and this includes the power to decide where and with whom the person will live, what education or training the person is to
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