Supported Decision Making Podcast

Episode Six: Recognition as a person before the law and the place of guardianship in some lives

October 14, 2019 Advocacy for Inclusion Season 1 Episode 6
Supported Decision Making Podcast
Episode Six: Recognition as a person before the law and the place of guardianship in some lives
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Supported Decision Making Podcast
Episode Six: Recognition as a person before the law and the place of guardianship in some lives
Oct 14, 2019 Season 1 Episode 6
Advocacy for Inclusion

In this episode of Advocacy for Inclusion's Supported Decision Making Podcast, we will look at a particular section of the Convention on the Rights of Persons with Disabilities - Article 12. This Article spells out the rights of people with disabilities to be recognised as persons before the law. We will look into what this means and we will also reflect on the place that guardians have in the lives of some people. 

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Show Notes Transcript

In this episode of Advocacy for Inclusion's Supported Decision Making Podcast, we will look at a particular section of the Convention on the Rights of Persons with Disabilities - Article 12. This Article spells out the rights of people with disabilities to be recognised as persons before the law. We will look into what this means and we will also reflect on the place that guardians have in the lives of some people. 

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PODCAST 6

Welcome back to Advocacy for Inclusion’s Supported Decision-Making Podcast. This podcast series is made possible through the generous support of the ACT Office for Disability.

I’m Rob Donnelly. I work for Advocacy for Inclusion. We are a Canberra based community organization advocating for people with disabilities. We also report on broad issues that have an impact on people with disabilities across the nation.

In our previous podcasts we’ve reflected on the power and importance of decision-making, the skills and challenges involved in supporting people who are making decisions, and the idea that certain choices and decisions are rights-based, and those rights are spelt out in the Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disabilities

We saw that it can be helpful – as someone supporting a decision-maker – to build our own awareness of these rights. A good starting point is googling UDHR and CRPD. 

And we finally saw that part of our practical support can involve helping the person we’re supporting connect with appropriate services when their rights are being denied. 

In this podcast we will dig into the Convention on the Rights of Persons with Disabilities a little more and particularly focus on Article 12

So, what is Article 12? 

It’s part of the convention that focuses on “equal recognition before the law.” The first point in the article says, and I quote:

“States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.” 

What does it mean to be recognized everywhere as a person before the law? 

In the simplest and broadest terms it means persons with disabilities have the right to have rights .. they are the holders of those rights and responsibilities that we all have before the law. 

If we un-pack that then we are talking about the rights and responsibilities to vote in elections, to serve on juries, to take legal issues to court and receive a fair hearing, and to be held to account in relation to abiding by the laws of the land. 

Being recognized as a person before the law means holding all the rights and responsibilities any and every citizen has.

The second point in Article 12 takes it further:

“States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”

What does “enjoy legal capacity” mean? It means not just having certain legal rights but being able to exercise those rights – for example signing an employment contract, making and signing an affidavit, drawing up a will. It has to do with being able to carry out those actions that involve legal recognition. 

It’s interesting to stop and really think about these first two points under Article 12. People with disabilities have the right to recognition as persons before the law. And people with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

Now you might jump in, at this point, and say – but what about people with disabilities who have guardians – depending on what the guardianship order covers, it’s the guardian who makes the decision for the other person signs all the contracts and agreements and other the legal paperwork. 

So, doesn’t that mean there are exceptions to what the Convention on the Rights of Persons with Disabilities says?

That’s a good question. 

When countries sign UN conventions they can make a declaration or even indicate a reservation when signing. A declaration is a country saying “I am signing this with the understanding that the document means X or it allows for Y.” In other words countries make clear their interpretation or understanding of what a convention does and doesn’t mean through their declaration.

In the case of the Convention on the Rights of Persons with Disabilities, Australia made a declaration:

“Australia recognizes that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life.  Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards”

So here – in Australia’s declaration - we have mention of substituted decision-making - meaning someone else makes the decision instead of the person – in other words a person we commonly call a guardian. It’s important to notice there some fairly strong conditions when it comes to substitute decision-makers.

Before we dig any deeper into Article 12 let’s touch base on one key fact when it comes to substitute decision-making. 

A substitute decision-maker, or guardian, is someone who has been legally appointed to be a guardian. In Canberra they are appointed by the ACT Civil and Administrative Tribunal. Guardians only have the power to make decisions, on behalf of the other person, in matters that are clearly laid out in a document called a legal order. So being a guardian doesn’t mean the guardian has the power to make decisions about everything in the other person’s life.

Let’s say you are supporting Mary. She is nineteen. She is thinking about studying to become a florist. Mary’s father, Paul, says that he is her guardian and he has decided she can’t enrol in the course. He knows what’s best for his daughter. He knows a floristry course is just going to be a waste of money. And he simply won’t allow it and other people should but out and mind their business. 

Now there are a few things to consider in this scenario. First of all, there is Paul’s claim that he is Mary’s guardian. He might presume that he is Mary’s guardian because he is her father. But Mary is an adult and Paul is only her guardian if he has been legally appointed to that role. If he isn’t legally appointed as her guardian, then he has no legal say about Mary studying floristry.

But maybe Paul has been legally appointed as Mary’s guardian. Does that automatically mean he has the power to make a decision about Mary’s further studies? 

Not necessarily. If the legal order, appointing Paul as Mary’s guardian, says that he has the power to make decisions about Mary’s accommodation (eg. where she lives and who she lives with) and nothing else - then Mary’s decision about studying floristry is outside his power as a guardian or substitute decision-maker. If decisions about education are not covered in a guardianship order then Mary has the right to make her own decisions. 

OK. Let’s say Paul is a guardian and the order includes making decisions related to Mary’s education. Legally Paul can make the decision about the floristry course. But is that the end of the matter? 

Well not entirely. Guardians operate under certain standards – the National Guardianship Standards – and a major focus in those standards is upholding the wishes of the person who has the guardian (in legal documents the person who has the guardian is called the protected person). The National Guardianship Standards include the following points:

·         the protected person’s wishes must be given effect wherever possible, unless those wishes will significantly adversely affect the protected person’s interests 

·         if the protected person’s wishes cannot be given effect, the interests of the protected person must be promoted as far as possible 

·         the protected person’s life and lifestyle must be interfered with to the smallest extent necessary

The bottom-line is, the wishes of the person need to be heard and followed by the guardian unless they adversely affect the person’s interests. When we look at the Guardianship Standards, we can see that the intention of guardianship or substitute decision-making is certainly not to side-line the so-called “protected person.” A core respect and reference to the wishes of that person regarding choices about their life must be present when substitute decision-making happens. 

If the “protected person” is being anything but protected by the guardian – if their wishes are not being respected by the guardian – if decisions are being made carelessly or are driven by motivations which aren’t focused on the best interests of the “protected person” – then the guardianship arrangement needs to be reconsidered – and it can be reconsidered - by the legal body that appointed the guardian. 

The guardianship arrangement can be changed – new guardians can be appointed, or orders can be changed – where there’s a case that someone is abusing their power as a guardian.

As someone supporting a decision-maker it is important to have an awareness of the place of guardians in some people’s lives. It’s also important to keep in mind that the appointment of a guardian has conditions – the range of a guardians decision-making power is specified in the legal document called orders – and the wishes of the person who has the guardian must be given effect unless they adversely effect that person’s interests. 

People who have guardians have the right to apply for a review of their situation if there’s a problem with the arrangement – for example if the guardian isn’t making decisions in a way that rings true to the National standards. In Canberra the process for applying for a review happens through the ACT Civil and Administrative Tribunal. If you live in Canberra you can find more information on their website. If you are in another state or territory you can check on the review processes with the government body that created the order.

Thank you for deciding to listen to this podcast. I hope you decide to come back again.