Video: Disability and Guardianship

Lynne 00:05
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 01:10
Thank you, Lynne, thank you for the opportunity to spread the OPA message.

Lynne 01:15
Well tell us just a little bit about what OPA does.

Claire McNamara 01:18
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 accommodation.

Lynne 02:34
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 03:36
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 05:04
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 05:21
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 08:24
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 09:25 Thank you.