The terrifying Four Corners Public Trustee investigation tells the story of two men who were mishandled by the Public Trustee after each failing their Capacity Assessment. In these instances, failing a Capacity Assessment resulted in significant financial loss and the loss of control over the most essential decisions in their lives. Each of these men were forced into institutional care against their will. In effect, their failed Capacity Assessments cost each of these men their freedom.
The indignity and injustice that occurred in these men's lives contravenes the Convention on the Rights of Persons with Disabilities (CRPD). All people - including those with disabilities - have a fundamental human right to make legally recognised decisions about their lives. This includes choices regarding healthcare and support services, where to live and how one's finances are managed. Understanding these rights and the processes surrounding them is thus essential to ensuring these injustices do not occur again.
What is a Capacity Assessment and why does it matter?
In Queensland, the Human Rights Act 2019 specifies that a finding of impaired capacity may place certain limitations on a person's human rights. A finding of impaired capacity means that:
a decision maker may be appointed on that person's behalf (section 15);
medical treatment can be administered without their consent (section 17);
restraint and seclusion is permissible under certain conditions (section 29); and
"decisions impacting an adult’s family and home, physical and mental integrity and even the exercise of their sexuality and individual identity (such as their clothing)" may be made by someone else (section 25).
The case of Britney Spears is a famous example of the freedoms that can be lost when under a legal guardian (conservatorship). In this instance, Britney Spear's father (her legal guardian) was able to control her finances, when she worked, what she ate, where she lived, who she associated with and what medications and medical treatments she undertook. This process started with a finding of impaired capacity due to Britney Spears' mental health issues.
A Capacity Assessment is the legal mechanism for determining whether a person has an impaired capacity to make decisions on their own behalf.
The Capacity Assessment may be undertaken by many people including a health professional, family member / friend, social worker and Aged Care Assessment Team (ACAT) worker. If this is challenged, the Queensland Civil and Administrative Tribunal (QCAT) or Supreme Court can make a formal declaration or finding about an adult’s capacity.
Thus, if someone is deemed by a doctor to have impaired capacity and there are no suitable family members or friends, the Public Trustee may be appointed to manage their money and the Public Guardian to manage their personal affairs. This can be almost impossible to escape, as the legal fees to dispute the arrangements may be refused by the Public Trustee.
The Capacity Assessment is therefore key to determining whether you are legally entitled to the rights of autonomy and self-determination.
Determining Capacity
The Queensland Capacity Assessment Guidelines define how capacity is determined under the Guardianship and Administration Act 2000. An adult's capacity can depend on:
the type of decision that must be made
the complexity of the decision
when the decision must be made
the support and information available.
The Queensland Capacity Assessment Guidelines specifically state that:
Simply linking the adult to medical, community and social supports they need may address any concerns about capacity to make decisions about personal, health or financial matters. This may remove the need to conduct a capacity assessment.
The guidelines give direct examples of the types of support that can avoid capacity assessments:
Personal Matters
Shopping assistance
Meal delivery service such as Meal on Wheels
In home support with cleaning and housework
Health Matters
A medical review to identify options for available supports
Adequate domiciliary (home) or transition care
Financial Matters
Reminders for bills
Help with shopping
Budget help
Financial counselling
Direct debits set up
Centrepay (a free service to pay bills and expenses as deductions from Centrelink payments)
Angel Assist takes a holistic approach to help you find an Angel Assistant who may be able to help you with every one of these tasks. Most importantly, we believe it is critical that you are the director of your own life. While the Angel Assistant will offer you support, it is you who determines what your life will look like on a day-to-day basis and how you would like to be supported.
The examples above highlight the importance of planning your care directives in advance and surrounding yourself with the right support structures. Please get in touch with us if you would like Angel Assist to help.
Do you have anything to add to this topic? We'd love to hear about it. Please leave a comment below.
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